LIBRARY 


UNIVERSITY   OF  CALIFORNIA 


Received 


-88<£>, 


Accessions  A^o. 


l/ 


Shelf  No. 


A   MEMOIR 


OF 


BENJAMIN    ROBBINS   CURTIS,   LL.D. 


MEMOIR 


OF 


BENJAMIN  BOBBINS  CURTIS,  LL.D. 


WITH    SOME    OF 


HIS   PROFESSIONAL  AND  MISCELLANEOUS 
WRITINGS. 


EDITED  BY  HIS  SON, 

BENJAMIN    R.    CURTIS. 


BOSTON: 
LITTLE,   BROWN,   AND    COMPANY. 

1879. 


. 


Entered  according  to  Act  of  Congress,  in  the  year  1879,  by 

BENJAMIN    R.    CUKTIS, 

In  the  Office  of  the  Librarian  of  Congress  at  Washington. 

-2-71.70 


UNIVERSITY  PRESS  : 
JOHN  WILSON  AND  SON,  CAMBRIDGE. 


PREFACE. 


MANY  friends  and  acquaintances  of  my  late  father,  in 
various  parts  of  the  country,  have  expressed  a  strong  desire 
for  the  publication  of  an  authentic  account  of  his  life,  and 
of  a  collection  of  such  of  his  principal  productions  as  are 
not  contained  in  the  Reports  of  the  courts  in  which  he 
practised  as  a  lawyer  or  sat  as  a  judge.  In  consequence 
of  these  suggestions  this  work  has  been  prepared.  My 
endeavor  has  been  to  provide  a  full  account  of  his  life 
in  the  first  volume,  and  to  collect  in  the  second  such  of 
his  literary  efforts  as  may  illustrate  his  character,  and  are 
worthy  of  preservation  in  a  permanent  form.  An  index  is 
added  to  each  volume. 

It  seemed  to  be  proper  to  commit  to  my  uncle,  Mr. 
George  Ticknor  Curtis,  the  preparation  of  the  biographical 
part  of  this  work.  He  was  my  father's  only  brother,  and 
as  there  was  a  difference  of  but  three  years  in  their  ages, 
and  as  their  relations  were  always  so  intimate,  he  was  best 
able  to  give  a  full  account  of  the  life  of  the  elder.  It 
was  said  soon  after  my  father's  death,  by  a  distinguished 
member  of  the  Boston  Bar,  who  had  known  him  for  forty 
years,  that  all  that  part  of  his  life  which  preceded  his 
removal  to  Boston,  in  1884,  was  known  only  by  tradition. 
This  portion  of  his  history  is  now  for  the  first  time  fully 
related  in  the  following  Memoir. 


VI  PREFACE. 

My  thanks  are  due  to  many  friends  of  Judge  Curtis, 
for  their  aid  in  furnishing  materials  of  great  value  to  his 
biographer.  Among  them,  I  am  under  special  obligations 
to  my  father's  college  classmates,  George  William  Phillips, 
Esq.,  Dr.  Oliver  Wendell  Holmes,  the  Rev.  Samuel  May, 
and  the  Rev.  Dr.  Chandler  Robbins.  To  President  Eliot, 
and  other  gentlemen  connected  with  Harvard  University, 
I  am  also  indebted  for  the  obliging  manner  in  which  in 
quiries  concerning  my  father's  college  life  have  been  met. 
From  the  stores  of  the  late  Mr.  George  Ticknor,  who  col 
lected  and  preserved  many  things  relating  to  his  nephew, 
through  a  period  of  more  than  forty  years,  I  have  been 
supplied  by  Mrs.  Ticknor  with  very  valuable  materials, 
of  which  the  author  of  the  Memoir  has  made  full  use. 
My  father's  letters  to  his  uncle,  from  the  time  when  he 
first  began  the  study  of  the  law,  show  the  free,  confidential, 
and  affectionate  intercourse  that  always  existed  between 
them. 

From  the  Department  of  State  and  the  Department  of 
Justice,  through  the  kindness  of  Secretary  Evarts  and 
Attorney-General  Devens,  I  have  received  important  in 
formation.  To  the  Hon.  Henry  Stanbery,  of  Ohio,  for 
merly  Attorney-General  of  the  United  States,  the  author 
of  the  biography  is  also  peculiarly  indebted,  as  he  likewise 
is  to  his  and  my  father's  friend,  D.  W.  Middleton,  Esq.,  the 
venerable  and  urbane  Clerk  of  the  Supreme  Court  of  the 
United  States. 

The  purpose  which  has  guided  me  in  the  selection  of 
such  of  my  father's  productions  as  are  included  in  the 
second  volume,  has  been  to  give  only  those  which  exhibit 
the  growth  of  his  mind  and  character  ;  which  illustrate 
the  influence  which  he  exerted,  or  endeavored  to  exert, 
upon  the  times  in  which  he  lived ;  or  which  show  the 


PREFACE.  Vll 

manner  in  which  he  discharged  his  public  duties  on  very 
important  occasions.  While  some  of  these,  and  others  of 
his  writings  that  are  included  in  the  Memoir,  touch  upon 
public  questions  or  events  or  persons  that  have  been  or 
still  are  subjects  of  controversy,  it  should  be  remembered 
that  the  sole  object  of  this  work,  in  reference  to  all  such 
matters,  is  to  show  how  my  father  felt  or  acted  respecting 
them. 

BENJAMIN   R.   CURTIS. 
BOSTON,  September,  1879. 


NEW  YORK,  June  1,  1879. 
BENJAMIN  R.  CURTIS,  ESQ.,  BOSTON. 

MY  DEAR  NEPHEW,  —  I  now  send  you  the  Memoir  of 
your  father,  which  I  promised  to  write  as  a  companion  vol 
ume  to  precede  your  proposed  collection  of  his  most  im 
portant  literary  remains.  If  it  affords  to  you  or  others, 
in  the  reading,  one  half  of  the  pleasure  that  it  has  afforded 
to  me  in  the  writing  of  it,  my  labor  of  love  will  be  amply 
rewarded. 

I  am  sensible,  however,  of  the  dangers  of  biographical 
writing ;  among  which  is  the  tendency  to  praise  and  exalt 
beyond  what  the  general  opinion  will  confirm.  But  the 
judgment  of  friends  and  acquaintances  concerning  your 
father  has  been  made  up.  All  that  we  need  be  anxious 
for  is,  that  strangers  and  other  generations  shall  under 
stand  him  as  well  as  he  was  understood  by  those  who 
knew  him,  or  who  knew  much  of  him.  I  desire  only  to 
have  it  remembered,  that  the  whole  of  his  life,  from  his 
boyhood,  was  known  to  me  as  it  could  be  known  to  no 


Vlll  PREFACE. 

one  else  now  living.  Tracing,  as  I  have  done,  the  entire 
course  of  his  life,  from  the  days  when  we  were  both  cared 
for  by  a  parent  whose  energies  made  her  one  of  the  most 
efficient,  and  whose  tenderness  and  self-devotion  made  her 
one  of  the  loveliest  of  her  sex,  I  am  reminded  of  the  beau 
tiful  allegory  of  two  of  Milton's  lines  :  — 

"  For  we  were  nurst  upon  the  selfsame  hill, 
Fed  the  same  flock,  by  fountain,  shade,  and  rill." 

Whatever  deductions,  therefore,  should  be  made  from  what 
I  have  here  recorded  or  said  of  your  father,  on  account  of 
fraternal  partiality,  I  ought  to  be  ready  to  accept,  as  T  am 
ready  to  bear  my  just  responsibility  for  any  thing  that  this 
Memoir  contains.  From  the  time  when  I  began  it  to  this 
moment  when  I  commit  it  to  your  care,  I  have  heard  a 
voice  which  seemed  to  say  to  me,  "  Make  no  imperfect 
exhibition  of  what  I  was  ;  and  as  I  courted  no  man's  favor, 
and  feared  no  man's  frown,  so  do  you  take  care  that  noth 
ing  I  ever  did  shall  be  allowed  to  be  misunderstood." 

I  cannot  transmit  this  biography  to  you  without  saying 
that  your  filial  desire  to  have  full  justice  done  to  your 
father's  memory,  and  your  diligence  in  collecting  the 
materials  needful  to  illustrate  his  character,  are  most 
gratifying  to  all  who  feel  an  interest  in  you.  That  you 
will  use  every  effort  to  be  worthy  of  the  honored  name 
you  bear  is  both  the  hope  and  the  belief  of 

Yours  most  affectionately, 

GEORGE   TICKNOR  CURTIS. 


CONTENTS   OF  VOLUME   I. 


CHAPTER  I. 

PAGE 

Birth  and  Parentage.  —  Early  Opportunities  for  Reading.  —  Schools  at 
tended.  —  A  Mother's  Self-Devotion.  —  Boyhood.  —  Religious  Impres 
sions.  —  First  Written  Production  that  is  Extant.  —  Enters  Harvard 
College 1 


CHAPTER  II. 

Harvard  College.  —  Trials  of  the  Freshman  Year.  —  A  Mother's  Anxiety 
quickly  relieved.  —  College  Friendships.  —  ABowdoin  Prize.  —  Rank 
as  a  Scholar.  —  Evident  Capacity  for  the  Legal  Profession.  —  An 
Oration  at  Commencement  not  delivered 28 


CHAPTER  III. 

Enters  the  Law  School  at  Cambridge.  —  Steady  Progress.  —  Quits  the 
School  for  a  Country  Residence.  — Finishes  his  Studies  at  Xorthfield. 
—  Admitted  to  the  Bar.  —  Marriage.  —  Country  Practice.  —  Invita 
tion  to  remove  to  Boston.  —  Acquisitions  and  Reputation. — Char 
acter  and  Professional  Standing  of  Mr.  Charles  Pelham  Curtis. — 
Letters  to  G.  W.  Phillips  and  Mr.  Ticknor 41 


CHAPTER  IY. 

1834-1844. 

Removal  to  Boston.  —  Letters  to  Mr.  Ticknor  in  Europe.  —  Rapid  Rise 
at  the  Boston  Bar.  —  Character  as  an  Advocate.  —  The  Case  of  the 
Slave-child  Med.  —  Death  of  James  C.  Alvord,  and  Tribute  to  his 
Memory.  —  Extensive  Practice.  —  Statesmanlike  Qualities,  but  not 
a  Politician.  —  Rule  in  regard  to  Participation  in  Public  Affairs.  — 


CONTENTS    OF   VOLUME  I. 

PAGE 

Article  on  Repudiation  in  the  "North  American  Review."  —  Letter 
from  Judge  Story.  —  Death  of  his  Wife.  —  Letters  to  Mr.  Ticknor  on 
that  Event  .  .  71 


CHAPTER  V. 

1845-1851. 

Death  of  Judge  Story.  —  Mr.  Curtis  appointed  to  succeed  him  in  the 
Corporation  of  Harvard  College.  —  Letters  to  Mr.  Ticknor.  —  The 
Fugitive-Slave  Excitement  in  Boston.  —  Address  of  Welcome  to  Mr. 
Webster.  —  Speech  in  Faneuil  Hall  on  the  Duty  of  obeying  the  Con 
stitution. —  Address  to  the  People  of  Massachusetts,  occasioned  by 
the  "  Coalition  "  .  .  106 


CHAPTER  VI. 

1851-1856. 

Appointed  an  Associate  Justice  of  the  Supreme  Court  of  the  United 
States.  —  Letter  to  President  Fillmore  and  Mr.  Webster.  —  The  "  Fu 
gitive  Slave  Trials"  in  Boston.  —  Judicial  Life  at  Washington. — 
Letters  to  Mr.  Ticknor  .  153 


CHAPTER  VII. 

1851-1856. 

Purchase  of  an  Estate  at  Pittsfield.  —  Country  Life.  —  Interest  in  Farm 
ing.  —  Letters  to  Mr.  Ticknor.  —  Projects  and  executes  his  Edition 
of  the  Supreme  Court  Decisions 182 


CHAPTER  VIII. 

1857. 

Last  Attendance  as  a  Member  of  the  Supreme  Court.  —  Foreshadowing 
of  Sectional  Conflicts.  —  The  Case  of  Dred  Scott.  —  Fatal  Errors  of 
the  Majority  of  the  Bench.  — Dissenting  Opinion.  —  Correspondence 
with  Chief  Justice  Taney 192 

CHAPTER  IX. 

1857. 

Resignation  of  Office.  —  Reasons  for  the  Step.  —  Correspondence  occa 
sioned  bj  it 243 


CONTENTS   OF   VOLUME   I.  XI 

CHAPTER   X. 

1857-1874. 

PAGE 

Return  to  the  Bar. — Death  of  Mrs.  Anna  W.  Curtis.  —  A  National 
Reputation.  —  A  great  Practice  of  Seventeen  Years.  —  Its  aggregate 
Pecuniary  Results.  —  Some  Opinions  on  Constitutional  and  other 
Questions.  —  Address  to  Judge  Sprague  on  his  Retirement  from  the 
Bench ,  ...  264 

CHAPTER  XI. 

1860. 
Change  of  Religious  Sentiments.  —  No  Change  in  Religious  Character  .  322 

CHAPTER  XII. 

1860-1866. 

Threatenings  of  Secession.  —  Efforts  to  produce  a  Conciliatory  Spirit  in 
Massachusetts.  —  Civil  War.  —  President  Lincoln's  Proclamations  of 
September,  1862.  —  Pamphlet  on  Executive  Power.  —  Curious  Inter 
view  with  Mr.  Stanton.  — Death  of  his  Mother.  —  Appointed  Umpire 
under  a  Treaty  between  Great  Britain  and  the  United  States.  —  Opin 
ions  given  at  the  Bar 327 

CHAPTER  XIII. 

1865-1868. 

Accession  of  Andrew  Johnson  to  the  Presidency.  —  Letter  to  the  Phil 
adelphia  Convention  of  August,  1866.  Impeachment  of  President 
Johnson.  —  Judge  Curtis  requested  to  defend  the  President.  —  His 
Opening  Argument.  —  Letters  to  Mr.  Ticknor  during  the  Trial.  — 
Acquittal  of  the  President.  —  Declines  the  Office  of  Attorney-Gen 
eral  383 

CHAPTER   XIV. 

1869-1874. 

Professional  Duties.  —  Letters  to  Mr.  Ticknor  and  William  E.  Curtis. 

—  Death  of  Mr.  Ticknor.  —  Deaths  of  Young  Children.  — A  Short 
Tour  in  Europe.  —  Letter  from  London  to  G.  T.  Curtis. —  Declines 
an  Appointment  as  Counsel  for  the  United  States  at  the  Geneva 
Arbitration.  —  Letter  to  the  Hon.  Reverdy  Johnson  concerning  the 
Office   of   Chief  Justice   of   the  United    States.  —  Lectures   at   the 
Cambridge  Law  School.  — Death  of  his  eldest  Daughter.  — Letter  to 
G.  T.  Curtis.  —  Continued  Professional  Labor.  —  Declining  Health. 

—  Death  at  Newport.  —  Independence  of  Character 420 


Xll  CONTENTS   OF   VOLUME   I. 


APPENDIX. 

PAGE 

Walter  Curtis 457 

Note  on  President  Lincoln's  Proclamation  suspending  the  Writ  of 

Habeas  Corpus,  etc 459 

Death  of  Mr.  Webster 463 

Cases  argued  before  the  Supreme  Judicial  Court  of  Massachusetts, 

from  1836  to  1851 467 

Opinions  of  the  Supreme  Court  of  the  United  States  delivered  by 

Judge  Curtis,  from  1851  to  1857 472 

Cases  argued  before  the  Supreme  Judicial  Court  of  Massachusetts, 

from  1857  to  1874 474 

Cases  argued  before  the  Supreme  Court  of  the  United  States,  from 

1857  to  1874   .  .    478 


IXDEX  TO  VOLUME  I. ,     .     .     .    481 


, 


MEMOIR  OF  BENJAMIN  ROBBIN 


S. 


CHAPTER   I. 

Birth  and  Parentage.  —  Early  Opportunities  for  Reading"."; 

—  A  Mother's  Self-Devotion.  —  Boyhood.  —  Religious  Impressions.  —  First 
Written  Production  that  is  Extant.  —  Enters  Harvard  College. 

MOST  persons  in  Massachusetts  who  bear  the  name  of 
Curtis  are  descended  from  William  and  Sarah  Curtis,  who 
emigrated  from  England  in  the  ship  "  Lyon,"  and  landed 
at  Boston,  Sept.  16,  1632. 

William  Curtis  was  born  in  the  village  of  Nazeing,  or 
Naseing,  in  the  county  of  Essex,  in  1592.  On  the  6th  of 
August,  1618,  he  married  Sarah  Eliot,  of  the  same  village, 
a  sister  of  John  Eliot,  the  "Apostle  to  the  Indians." 
Whether  William  emigrated  from  Essex  or  from  Warwick 
shire  is  not  certain  ;  but,  in  regard  to  his  family  name,  we 
have  the  authority  of  Shakspeare  for  the  mode  of  spelling 

VOL.    I.  1 


2  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.          [1639. 

it  in  use  at  the  present  day  among  most  of  his  descendants.1 
He  settled  in  Roxbury,  and  in  1639  he  built  a  house  on 
Stony  Brook,  under  the  shadow  of  a  large  elm.  The  house 
and  the  tree  are  still  standing;  and  the  house  was  until 
quite  recently  occupied  by  one  of  his  lineal  descendants  of 
the  sixth  generation,  the  late  Mr.  Isaac  Curtis.  The  place 
is  near  the  Boylston  Station,  on  the  west  side  of  the  Boston 
and  Providence  Railroad ;  and  on  it  there  is  a  spring  of 
water  which  has  been  used  by  the  family  for  more  than  two 
hundred  years.  The  family  tradition  is  that  this  house  was 
built  from  timber  cut  on  the  ground. 

The  name  of  Curtis  has  been  variously  spelled,  both  in 
England  and  America,  —  as  it  is  here  printed,  and  as  Cur- 

1  In  the  "  Taming  of  the  Shrew/'  one  of  the  inferior  characters  is  named 
Curtis.  In  this  play,  the  scene  of  which  is  laid  in  Padua,  Shakspeare,  with 
his  usual  disregard  of  congruities,  mixes  up  English  names  and  localities 
with  Italian  names  and  scenes.  Thus  he  makes  Sly  declare  that  he  is 
"  Christopher  Sly,  old  Sly's  son  of  Burton-heath,"  or  Burton-on-the-heath, 
a  village  in  his  own  Warwickshire  ;  and  he  introduces  the  name  of  "Marian 
Hacket,  the  fat  alewife  of  Wineot,"  who  is  supposed  to  have  been  a  real 
personage  at  Wineot,  four  miles  from  Stratford-on-Avon,  at  the  time  the 
play  was  written.  In  the  same  way,  he  picked  up  the  name  of  Curtis, 
either  at  his  own  town  of  Stratford-on-Avon,  or  elsewhere  in  Warwickshire, 
and  bestowed  it  upon  a  servant  of  Petruchio,  calling  the  other  servant 
Grumio.  In  the  Connecticut  Stratford  there  is  a  family  of  Curtises,  who  are 
supposed  to  be  descended  from  a  brother  of  our  William,  of  Roxbury ;  but 
this  is  not  certain.  The  tradition,  however,  is,  that  the  two  brothers  came 
over  together,  but  that  the  progenitor  of  the  Connecticut  family  came  from 
the  Warwickshire  Stratford.  But  whether  William,  of  Roxbury,  came  from 
that  county,  or,  as  is  more  probable,  from  Essex,  where  he  and  his  wife 
were  born,  the  name  appears  to  have  been  a  common  one  in  the  northern 
and  middle  counties  of  England  two  centuries  and  a  half  ago.  In  the 
parish  register  of  Brington  in  Northamptonshire,  there  is  a  record  that,  in 
1020,  Philip  Curtis  married  Amy  Washington.  She  was  a  sister  of  John 
Washington,  the  grandfather  of  our  first  President.  The  "Apostle  "  Eliot, 
who  was  brother  of  my  ancestress  Sarah  Curtis,  the  wife  of  William,  of 
Roxbury,  was  born  in  1603,  was  educated  at  Jesus  College,  Cambridge,  and 
came  out  to  Boston  in  1631.  In  1632,  he  married  in  Boston  Ann  Mount- 
ford,  who  came  out  with  Mr.  and  Mrs.  Curtis  in  Winthrop's  fleet.  He  was 
minister  of  Roxbury  for  fifty  years.  He  was  the  third  son  and  fourth  child 
of  Bennet  Eliot,  of  Nazeing,  "  yeoman  and  freeholder." 

There  lies  before  me  a  copy  of  a  record,  made  in  1632,  in  the  Herald's 
College,  by  Richard  St.  George,  Knt,  Clarencieux  King  of  Arms  in  the 
reign  of  Charles  I.,  from  which  it  appears  that  there  had  long  been  a  family 


1639.]  THE  CURTIS  FAMILY.  3 

teis,  Curties,  Courtis,  and  Cortis.  But  of  the  identity  of 
the  name  and  family  there  can  be  no  doubt.  The  Nazeing 
branch  of  the  family  were  substantial  yeomen,  possessing 
property ;  and  in  the  records  of  their  parish,  in  1637-38, 
their  name  is  found  as  customary  tenants  attending  the  old 
court  leet.  Of  the  families  in  England  now,  above  the 
rank  of  yeomen,  those  in  Sussex  write  the  name  Curteis, 
while  those  in  Devon  and  other  counties  write  it  Curtis,  as 
it  is  usually,  but  not  universally,  written  in  America. 

Thus  it  appears  that  William  Curtis,  the  progenitor  of 
the  family  in  Massachusetts,  belonged  to  that  middle  class 
of  Englishmen  who  constituted  the  great  bulk  of  the  first 
emigrations.  It  is  not  known  that  he  was  connected  by 
blood  with  the  Warwickshire  family  of  the  same  name,  who 
claimed  the  rank  of  gentry.  Nor  is  it  known  that  any  of 

of  Curtises  in  Warwickshire,  of  the  rank  of  "gentlemen."  It  recites  that 
"John  Curtis  of  London,  Gent.,"  had  applied  for  a  search  and  certificate  of 
his  coat-of-arms;  that  he  was  the  "  sonne  of  William  Curtis  in  the  County  of 
Warwick,  Gent,  the  sonne  of  Eustace  Curtis  of  Malstock  in  the  said  County 
of  Warwick,  Gent.,  the  son  of  William  Curtis,  son  and  heir  of  John  Curtis  of 
Malstock  aforesaid,  Gent.,  who  bears  for  his  armes,  &c.,  .  .  .  which  William 
Curtis  (sonne  and  heir  of  John)  married  Ann,  the  sole  daughter  and  heir 
of  John  Cawley  of  Rygate  in  the  County  of  Sussex,  Gent.,  who  bears  his 
armes,  £c.,  ...  as  did  appear  to  mee  by  sundry  ould  scales  and  other  good 
testimonies  and  proofs  now  in  my  owne  custody  and  keeping."  The 
herald  then  proceeds  to  certify  and  grant,  by  elaborate  description,  accord 
ing  to  the  terms  of  heraldry,  to  John  Curtis  and  his  issue  and  posterity  for 
ever,  and  to  the  issue  and  posterity  of  John  Curtis  of  Malstock,  the  coat- 
of-arms  which  he  finds  them  entitled  to  bear.  From  this  it  appears  that, 
reckoning  back  from  the  reign  of  Charles  I.,  the  ancestors  of  John  Curtis 
of  London  were  in  Warwickshire  for  four  generations,  of  the  rank  styled 
in  heraldry  as  "  gentlemen ; "  that  they  wrote  their  name  Curtis,  as  their 
neighbor,  Shakspeare,  wrote  it  when  he  borrowed  it  for  some  of  his  rollick 
ing  purposes  in  one  of  his  plays,  and  as  the  yeomanry  family  of  Nazeing,  in 
Essex,  also  wrote  it. 

There  are  two  families  in  England  of  this  name,  of  the  rank  of  baronets, 
whose  connection  with  the  Nazeing  or  the  Warwickshire  family  has  not  been 
traced.  Sir  Arthur  Curtis,  of  Gatcombe,  county  Hants,  is  descended  from 
Robert  Curtis,  of  Downton,  Wilts,  whose  son,  Sir  Roger,  was  a  distinguished 
naval  officer,  and  was  created  a  baronet  in  179-4.  His  son,  Sir  Lucius, 
Admiral  of  the  Fleet,  was  the  father  of  the  present  baronet.  Sir  William 
Michael  Curtis,  Bart.,  of  Cullard's  Grove,  Middlesex,  is  descended  from 
William  Curtis,  Esq.,  Lord  Mayor  of  London  in  1795. 


4  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1791. 

his  ancestors  were  of  either  of  the  learned  professions,  or 
that  any  of  them  received  a  university  education.  They 
were  probably  farmers.  That  his  wife  was  the  sister  of 
such  a  man  as  John  Eliot,  who  became  their  pastor  in  Rox 
bury,  indicates  that  William  Curtis  was  a  man  of  good 
social  position  in  his  rank  of  life.  Of  his  descendants,  from 
the  Rev.  Philip  Curtis  down  to  the  present  generations, 
more  than  twenty-five  are  borne  on  the  catalogue  of  Harvard 
College,  between  the  years  1T38  and  1872.1 

Fourth  in  direct  descent  from  William  of  Roxbury  was 
Benjamin  Curtis,  the  second  of  that  baptismal  name  after 
the  emigration.  He  was  a  great-great-grandson  of  William, 
and  was  born  in  Roxbury  in  1750.  He  graduated  from 
Harvard  College  in  1771,  in  the  same  class  with  the  first 
Dr.  John  Warren,  of  Boston.  He  studied  medicine,  and 
served  for  some  time  as  a  surgeon  in  the  Revolutionary 
army.  He  afterwards  settled  in  Boston,  became  a  Fellow 
of  the  Massachusetts  Medical  Society,  and  acquired  a  good 
practice.  He  had  married  Elizabeth  Billings,  of  Sharon, 
before  he  entered  the  army.  He  died  in  Boston,  greatly 
lamented,  at  the  early  age  of  thirty-four,  Nov.  26,  1784, 
leaving  four  children.  In  1791,  his  widow  married  Mr. 
Elisha  Ticknor,  of  Boston  ;  and  of  this  marriage  the  late 
Mr.  George  Ticknor  was  the  only  child.2 

1  Judge  Curtis,  probably  from  some  data  that  I  have  not  seen,  considered 
that  there  was  a  family  connection  bet  ween  the  Curtises  of  Connecticut  and 
the  family  in  Massachusetts.     See  his  letter  of  March  23,  1870,  to  the  Hon. 
Wm.  E.  Curtis,  now  one  of  the  Judges  of  the  Superior  Court  of  the  City  of 
New  York,  who  is  one  of   the  Connecticut  family,  post,  chap.  xiv.     This 
letter  gives  a  somewhat  humorous,  but  in  the  main  correct,  description  of 
some  of  the  characteristics  of  the  descendants  of  William  Curtis  of  Roxbury. 

2  A  more  particular  account  of  my  grandmother,  Mrs.  Elizabeth  Ticknor, 
may  be  found  in  the  recently  published  memoirs  of  her  son,  Mr.  George 
Ticknor,  vol.  i.  pp.  3,  4.     Her  children  by  her  first  marriage  with  Dr.  Curtis 
were  Eliza,  Harriet,  Benjamin,  and  Gustavus  Curtis.     In  the  "  Boston  Maga 
zine  "  for  December,  1784,  there  is  an  obituary  notice  of  Dr.  Benjamin  Curtis 
written  in  verse,  and  another  in  prose.     Both  of  them  speak  with  great 
feeling  of  his  virtues  and  usefulness,  and  mourn  him  as  a  man  of  uncommon 
character.     His  father  was  Benjamin,  the  first  of  that  name.     One  of  his 


1809.]  PARENTAGE.  5 

Benjamin  Curtis  (3d),  the  eldest  son  of  Dr.  Curtis,  was 
bred  in  the  merchant  marine.  He  made  several  voyages 
as  supercargo,  and  afterwards  as  master.  On  the  18th  of 
January,  1807,  he  married  Lois  Robbins,  of  Watertown ;  a 
town  of  large  territorial  extent  and  early  settlement,  adjoin 
ing  Cambridge,  the  principal  village  of  which,  commonly 
called  "  Watertown  Square,"  on  the  northerly  side  of  the 
Charles  River,  was  about  seven  miles  distant  from  Boston. 
Of  this  marriage  there  were  two  children ;  Benjamin  Rob- 
bins,  born  Nov.  4,  1809,  and  the  writer  of  this  Memoir, 
born  Nov.  28,  1812. 

My  mother  was  a  daughter  of  Mr.  James  Robbins,  a 
prominent  and  much  respected  citizen  of  Watertown,  who 
carried  on  various  branches  of  manufacturing,  and  was 
also  interested  in  a  country  store.  He  was  not  a  very 
prosperous  man  in  the  later  years  of  his  life  ;  and  when 
he  died,  in  1810,  he  left  a  widow  and  a  numerous  family 
of  children,  with  but  a  small  estate.  He  had  owned 
and  lived  in  a  large  old-fashioned  house,  which  stood  on  the 
bank  of  the  river,  near  the  "  Square,"  and  just  at  the  en 
trance  of  "  Watertown  Bridge,"  •  —  an  ancient  bridge  that 


uncles  was  the  Rev.  Philip  Curtis,  who  was  minister  of  Sharon  for  fifty-five 
years,  and  died  in  1797,  at  the  age  of  eighty-one.  He  married  my  grandfather 
and  grandmother,  when  they  were  both  quite  young.  (Memoirs  of  George 
Ticknor,  vol.  i.  p.  3.)  For  the  greater  part  of  the  earlier  facts  here  stated 
in  reference  to  my  family  I  am  indebted  to  a  compilation  of  the  descendants 
of  William  Curtis,  originally  gathered  by  Miss  Catharine  P.  Curtis,  of 
Roxbury,  and  edited  and  published,  in  1869,  from  her  MSS.  and  other 
sources,  by  Samuel  C.  Clarke,  Esq.,  of  Jamaica  Plain,  whose  grandmother 
was  a  daughter  of  Obadiah  Curtis,  a  great-grandson  of  William  of  Roxbury. 
In  Potter's  "  American  Magazine,"  for  March,  1876  (Philadelphia),  there  is  an 
accurate  cut  of  the  house  of  William  Curtis  in  Roxbury  (now  Jamaica 
Plain),  from  a  sketch  made  by  Miss  Sarah  Clarke,  a  sister  of  the  gentleman 
just  named,  and  a  description  of  the  house  by  Benson  J.  Lossing,  LL.D., 
who  includes  it  among  "  The  Historic  Buildings  of  America."  Mr.  Lossing 
observes  that  our  history  furnishes  "  no  parallel  case  of  continuous  habita 
tion  of  a  dwelling  by  the  same  family  for  almost  two  hundred  and  forty 
years,"  and  that  this  "is  probably  the  oldest  inhabited  dwelling  within  the 
domain  of  our  republic."  The  cut  at  the  head  of  this  chapter  is  copied  from 
Potter's  Magazine. 


6  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.          [1810. 

led  toward  Newton.  My  mother,  after  her  marriage,  re 
mained  in  this  house  with  her  parents,  on  account  of  my 
father's  seafaring  occupation  ;  and  there  both  of  her  children 
were  born,  and  lived  until  they  were  respectively  of  the 
ages  of  fourteen  and  eleven.  My  father  died  abroad,  at  so 
early  a  period  in  his  life  that  I  have  no  recollection  of  him. 
He  was  said  to  have  strongly  resembled  my  brother,  as  the 
latter  became  when  he  was  grown  up,  in  mind,  person,  and 
demeanor.  My  mother,  a  young  and  beautiful  woman,  of 
delicate  constitution  and  great  tenderness  of  feeling,  left  a 
widow  with  very  little  property  and  with  two  children  to 
provide  for,  might  naturally  have  become  dependent  upon 
friends,  or  have  sunk  under  sorrows  that  had  darkened 
her  early  days.  But  she  was  a  person  of  great  energy.  I 
often  look  back  with  wonder  at  wliat  she  could  do,  not  only 
for  herself  and  her  children,  but  for  others.  She  was  never 
what  could  be  called  a  strong  woman  physically;  and, 
morally,  she  was  always  as  far  removed  as  possible  from 
the  class  of  the  "  strong-minded."  A  part  of  her  acknowl 
edged  power  was  due  to  her  sweetness  of  disposition,  her 
quick  sympathy  with  every  form  of  suffering,  her  practical 
intelligence  and  capacity,  and  her  complete  unselfishness. 
These  qualities,  added  to  her  personal  attractions,  gave  her 
an  extraordinary  power  of  being  useful  to  others  ;  and  this 
is  a  character  which  generally  wins  for  its  possessor  a  large 
return.  In  all  trouble  of  every  kind,  through  a  wide  circle  of 
relatives,  friends,  and  neighbors,  —  not  omitting  the  poorest 
of  the  latter,  —  she  became  the  one  person  whose  help  and 
sympathy  and  efficiency  were  always  sought  for,  expected 
as  a  right,  and  never  withheld  when  they  could  be  given. 
She,  who  might  well  have  been  absorbed  by  her  own  cares 
and  troubles,  had  energy  enough  for  her  personal  duties, 
and  for  many  things  which  to  her  were  no  duties  at  all. 
The  consequence  was  that  everybody  regarded  her  with  great 
respect ;  everybody  appreciated  the  resolution  with  which 
she  met  the  demands  of  her  widowed  condition  ;  and  all  in 


1818.]  EARLY  BEADING.  7 

her  circle  who  could  aid  her  were  ready  to  afford  her  all 
the  aid  that  a  woman  of  so  much  character,  and  so  much 
independence  of  spirit,  could  receive. 

She  and  a  younger  sister  had  been  educated,  as  day  pupils, 
at  a  boarding-school  for  young  ladies,  kept  by  a  Mrs.  Rowson 
in  Newton,  about  half  a  mile  from  their  father's  house. 
The  education  was  such  as  young  women  at  that  time,  in 
New  England,  obtained  at  such  schools.  It  did  not  com 
prehend  the  ancient  languages,  or  any  modern  language 
excepting  English ;  but  in  plain  and  ornamental  needle 
work,  in  arithmetic  and  geography,  in  a  little  astronomy 
and  some  history,  and  especially  in  English  literature,  it 
was  a  good  education.  My  mother,  after  her  marriage,  in 
consequence  of  her  maternal  and  other  cares,  did  not  con 
tinue  to  seek  literary  cultivation  so  much  as  her  younger 
sister  did,  who  was  never  married,  and  whom  some  persons 
still  living  remember  as  a  very  brilliant  woman,  of  uncom 
mon  conversational  powers.1  This  lady  lived  with  my 
mother  a  good  deal,  and  helped  her  to  inspire  her  children 
with  a  love  of  books  and  knowledge.  She  had,  at  different 
times  in  her  life,  seen  something  of  the  world  out  of  New 
England,  in  visits  to  New  York  and  Philadelphia,  and  was 
a  rather  sharp  critic  in  manners  and  grammar.  Any  sole 
cism  in  either  was  sure  to  encounter  her  reproof. 

Among  the  occupations  to  which  my  mother  resorted,  in 
order  to  support  herself  and  her  children,  she  established  a 
circulating  library,  at  a  time  when  my  brother  was  about 
nine  years  old.  This  collection  of  books  comprehended 
the  current  literature  of  the  day,  and  some  of  the  standard 
English  authors.  It  was  kept  in  a  room  on  the  ground 
floor,  appropriated  to  my  mother  as  a  "  shop,"  in  my  grand 
mother's  part  of  the  old  house.  The  circulation  of  the 

1  Martha  Robbing.  She  died  in  Boston,  in  the  year  1846.  In  the  later 
years  of  her  life  she  became  very  intimate  in  the  family  of  Judge  Story,  at 
Cambridge.  She  had  a  peculiar  enjoyment  in  the  Judge's  conversation,  and 
he  liked  hers.  When  they  met,  there  were  no  "flashes  of  silence." 


MEMOIR   OF  BENJAMIN  ROBBINS   CURTIS.  [1820. 

books,  on  the  loan  of  which  there  was  a  small  charge, 
brought  in  a  little  revenue ;  and  as  many  of  the  books  were 
the  gifts  of  friends,  who  had  purchased  them  for  their  own 
use,  and  after  they  had  read  them  gave  them  to  my  mother, 
the  expense  for  her  of  keeping  up  the  collection  with  the 
new  works  of  the  time  was  inconsiderable.1  It  was  chiefly  a 
collection  of  novels  and  poetry  ;  and  when  I  name  the  period 
during  which  my  mother  kept  this  library,  as  from  about 
1818  to  about  1825,  the  reader  will  see  that  Scott's  novels 
from  "  Waverley  "  to  "  Redgauntlet,"  and  all  his  principal 
poems;  Byron's  works;  Southey's  "Thalaba"  and  "Rod 
erick  ;  "  living's  "  Sketch  Book,"  "  Bracebridge  Hall,"  and 
"  Tales  of  a  Traveller  ;  "  Cooper's  "  Spy,"  "  Pioneers,"  and 
"  Pilot ;  "  and  many  other  books,  new  at  that  period,  might 
have  been,  as  in  fact  they  were,  included  in  this  collec 
tion.  The  books  Avere  much  sought  for  by  the  surrounding 
families. 

My  aunt's  books  were  not   embraced  in   the  circulating 

library  ;  but  she  possessed,  among  others,  an  excellent  edition 

of  Shakspeare,  —  of  whose  works  she  was  a  constant  reader, 

-  Milton's  u  Paradise  Lost,"  Young's  "Night  Thoughts," 

1  Among  the  friends  who  thus  contributed  to  my  mother's  collection  of 
books,  I  should  mention  Mr.  Ticknor  and  Mr.  Marshall  Binney  Spring,  the 
father  of  Mrs.  Edward  Perkins  and  Mrs.  W.  C.  Wharton,  of  Boston.  Mr. 
Spring  was  the  only  son  and  only  child  of  Dr.  Spring,  a  very  eminent 
physician  in  Watertown,  whose  grounds,  it  used  to  be  said,  were  often  seen 
of  an  afternoon  filled  with  the  carriages  of  patients  who  had  driven  out 
from  Boston  to  consult  him.  After  his  death,  it  was  rumored  that  a  con 
siderable  sum  in  bank-notes  was  found  in  his  study,  stuffed  in  the  cushions 
of  his  chairs  and  sofas,  and  other  odd  places  ;  being,  it  was  supposed,  some  of 
the  fees  paid  by  his  town  patients.  He  died  Jan.  11, 1818,  at  the  age  of  seventy- 
six.  He  left  a  good  fortune  to  his  son,  who  had  married  Miss  Eliza  Willing, 
of  Philadelphia,  a  ward  of  the  late  Hon.  Horace  Binney.  She  died  young,  in 
1825.  Her  husband,  who  was  inconsolable  for  her  loss,  did  not  long  survive 
her.  Mrs.  Spring  was  a  very  elegant  woman,  and  her  husband  was  a  young 
man  of  most  amiable  and  accomplished  manners.  Both  were  kind  friends 
of  my  mother.  I  saw  Mr.  Binney  at  the  funeral  of  Mrs.  Spring,  when  I  was 
twelve  years  old,  and  I  distinctly  remember  his  personal  appearance.  When 
I  next  saw  him,  he  was  between  eighty  and  ninety.  He  and  Mr.  Marshall 
B.  Spring  were  half-brothers.  The  latter  graduated  at  Harvard  in  1812. 


1822.]  EARLY  BEADING. 

Thomson's  "  Seasons,"  Cowper's  Poems,  Johnson's  "Ras- 
selas,"  Jeremy  Taylor's  "  Holy  Living  and  Dying,"  and  the 
"  Spectator."  I  am  quite  sure  that  my  brothers  first  knowl 
edge  of  these  authors  was  derived  from  her  books.  In  a  home 
so  furnished  with  the  lighter  and  some  of  the  more  solid  mate 
rials  of  intellectual  development,  my  brother  became  a  great 
reader,  at  an  age  when  most  boys  care  for  nothing  but  their 
sports.  At  first,  he  read  novels  incessantly ;  and  I  can 
well  remember  the  sorrowful  resignation  with  which  he 
would  surrender  a  volume  of  Scott,  or  Cooper,  or  Irving, 
when  a  call  for  it  came  into  my  mother's  little  parlor 
from  the  u  shop."  Of  course  a  book's  chance  of  earning  a 
"  fourpence-ha'penny  "  was  not  to  be  pretermitted  ;  and  as 
the  chances  came  frequently,  in  the  case  of  the  popular 
authors,  he  had  to  read  by  snatches.  He  devoured  a  book, 
but  he  mastered  every  thing  in  it ;  and  he  would  expound 
the  story,  or  the  allusions,  or  the  historical  connection,  to  my 
younger  and  feebler  apprehensions,  with  much  boyish  gravity 
and  wisdom.  He  had  a  faculty,  remarkable  in  one  so  young, 
for  distinguishing  fact  from  fiction,  superstition  from  well- 
grounded  belief,  theory  from  experience,  and  the  natural 
from  the  unnatural.1  From  novel-reading  he  passed  to 

1  One  of  the  books  in  my  mother's  circulating  library  which  I  heard 
talked  about  a  great  deal,  and  which  I  read  as  much  of  as  I  dared,  was  a 
strange,  weird,  metaphysical  novel,  called  "  Melmoth,  the  Wanderer,"  by 
Charles  Kobert  Maturin.  The  principal  character  was  a  man  of  genius,  who 
had  made  some  kind  of  compact  with  the  powers  of  darkness,  by  which  he 
was  permitted  to  live  for  centuries,  and  to  have  supernatural  powers  of 
locomotion  and  other  pernicious  advantages ;  but  at  the  end  of  the  stipulated 
period,  when  the  awful  hand  on  the  great  dial  of  the  ages  pointed  to  the 
fatal  hour,  he  had  to  sink  into  everlasting  perdition.  As  a  matter  of  course, 
he  committed,  while  he  was  on  earth,  all  kinds  of  wickedness.  Such  at  least 
is  my  recollection  of  the  story,  but  I  have  not  seen  the  book  since  I  was  a 
child,  and  may  not  be  entirely  accurate  about  it.  But  I  remember  very  dis 
tinctly  how  my  brother  used  gravely  to  argue  that  there  could  not  possibly 
be  any  truth  in  such  adventures.  No  doubt  such  a  book  should  not  have 
been  within  the  reach  of  very  young  persons  ;  but  as  we  revelled  in  "  Robin 
son  Crusoe  "  and  "  Gulliver's  Travels  "  Avhen  mere  children,  and  later  on  in  the 
Waverley  Novels,  it  will  be  allowed  that  we  had  more  wholesome  reading. 
How*  wisely  and  with  what  a  master's  hand  did  Sir  Walter,  in  all  his  dealings 


10  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [1822. 

some  of  the  historical  plays  of  Shakspeare,  and  afterwards 
to  the  "  Paradise  Lost." 

The  "  shop  "  to  which  I  have  alluded  was  a  retail  dry- 
goods  business,  which  my  mother  carried  oil  for  several 
years,  chiefly  in  articles  of  millinery  and  such  small  gear 
as  ladies  most  affect  or  need.  She  had  all  the  credit  she 
wanted  with  the  leading  importers  and  "  jobbers  "  in  Bos 
ton,  who  had  entire  confidence  in  her  business  capacity; 
but  I  do  not  suppose  that  this  little  trade  was  ever  very 
profitable  to  her.  It  gave  her,  however,  a  pleasant  occupa 
tion,  because  it  brought  around  her  the  principal  ladies  of 
the  neighborhood,  who  were  glad  to  do  their  shopping  with 
out  the  trouble  of  going  to  Boston  for  it,  and  who,  besides 
doing  her  a  good  turn,  were  quite  willing  to  have  a  chat 
with  an  interesting  woman  about  the  last  new  book,  or  to 
look  over  her  catalogue  and  find  something  to  read  when 
there  was  no  new  book  that  was  "  the  rage,"  The  country 
ladies  of  the  less  wealthy  or  cultivated  sort  came  to  drive 
good  bargains,  get  what  they  wanted,  and  talk  about  their 
troubles.  A  single  maid-servant  —  some  country  girl  of 
the  native  New  England  race  —  was  all  the  help  in  domes 
tic  affairs  that  my  mother  could  afford.1 

Thus  the  earlier  years  of  her  widowhood  passed  on,  with 
many  struggles  and  trials  ;  but  she  gained  a  comfortable 
subsistence,  although  nothing  more,  and  she  had  no  trials 
in  her  children.2  When  my  brother  was  about  ten  years 
old,  she  began  to  think  that  a  boy  of  such  talent  and  such 

with  the  marvellous  or  the  supernatural,  enable  even  his  youngest  readers 
to  see  that  the  phenomena  were  capable  of  a  natural  explanation,  that  the 
superstition  was  not  a  reality,  and  that  the  imagination  can  fill  the  uni 
verse  with  agencies  of  which  human  experience  knows  nothing,  and  which 
it  can  contemplate  only  as  a  part  of  the  materials  of  poetry  and  romance ! 
Yet  how  skilfully  did  he  weave  these  materials  into  the  web  of  human  life ! 

1  In  my  native  town,  during  my  boyhood,  I  can  remember  only  a  single 
foreigner  of  either  sex. 

2  The  shocking  death  of  her  mother,  who  was  accidentally  drowned  in 
the  year  1819,  was  a  terrible  affliction  to  her.     She  was  absent  from  home 
on  the  day  of  this  occurrence,  and  had  to  be  sent  for. 


1822.]  FIKST   SCHOOLS.  11 

a  studious  temperament  ought  to  have  a  college  education. 
But  how  this  was  to  be  obtained  was  a  serious  difficulty,  in 
her  circumstances. 

In  the  first  place,  there  was  the  question  of  a  school. 
The  nearest  classical  school  supported  at  public  expense 
was  the  Boston  Latin  School,  at  which  many  of  my  broth 
er's  contemporaries  and  college  classmates  were  fitted  for 
Harvard.  But  only  boys  who  were  residents  of  Boston 
could  attend  that  institution.1  The  town  of  Watertown 
was  very  ill  furnished  with  schools.  Its  public  schools  were 
then  but  poorly  provided,  and  there  were  no  private  schools 
at  which  boys  could  be  trained  for  a  college  education 
within  the  limits  of  the  town.  My  brother's  first  school 
was  a  dame's  school,  kept  by  a  little  old  lady  named  Ger- 
rish.2  Next,  he  attended  for  a  short  time  a  school  kept  by 
Mr.  Samuel  Worcester,  in  Newton,  along  with  my  mother's 
youngest  brother.3  At  this  school,  nothing  was  taught  but 
reading,  writing,  arithmetic,  and  geography.  ,  From  Mr. 
Worcester's,  my  brother  went  for  a  little  while,  as  a  day 
pupil,  to  the  Rev.  Samuel  Ripley,  the  clergyman  of  Wal- 
tham.  This  gentleman,  who  had  a  learned  and  accom 
plished  wife,  took  a  few  pupils  into  his  family  as  boarders, 

1  The  late  Hon.  George  Tyler  Bigelow,  one  of  my  brother's  classmates, 
who  became  Chief  Justice  of  Massachusetts,  was  born  in  Watertown,  where 
his  parents  always  resided.     He  was  fitted  for  college  at  the  Boston  Latin 
School ;  a  privilege  that  was  allowed  because  of  his  residence  in  Boston  with 
one  of  his  kindred. 

2  This  ancient  spinster,  always  called  "  Ma'am  Gerrish,"  had  kept  a  pri 
vate  infant  school  in  Watertown,  time  out  of  mind.     She  had  taught  my 
mother  to  read,  and  afterwards  taught  both  of  her  children.     She  was  a 
rather  strict  old  body,  but  she  took  excellent  care  of  the  children  intrusted 
to  her.     Her  literary  instruction  did  not  go  beyond  the  "  New  England 
Primer ; "  but  she  taught  both  boys  and  girls  to  knit,  and  the  girls  to  sew. 
I  have  known  the  author  of  the  celebrated  dissenting  opinion  in  the  Dred 
Scott  case  to  knit  a  pair  of  woollen  mittens,  and  to  cover  with  leather  any 
number  of  "bat-balls." 

8  Mr.  Isaac  Eobbins,  still  living  in  a  hale  and  happy  old  age.  He  was 
but  a  little  more  than  six  years  older  than  my  brother,  and  they  were  com 
panions  in  many  a  hunting  and  fishing  expedition.  He  was  born  April  21, 
1803. 


12  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [1822. 

and  also  had  some  day  scholars.1  "With.  Mr.  and  Mrs. 
Ripley  my  brother  began  the  Latin,  and  I  think  the  Greek 
grammar.  But  the  distance  of  their  house  from  ours  was 
more  than  two  miles ;  and  my  mother  did  not  feel  that  she 
could  afford  to  make  her  son  a  boarder  in  their  family.  At 
last  there  seemed  to  be  an  opening  for  classical  tuition 
nearer  home. 

In  the  early  part  of  the  year  1822,  a  number  of  the  fami 
lies  in  Watertown  who  wanted  a  higher  education  for  their 
children  than  the  public  schools  afforded,  established  a  pri 
vate  school  for  pupils  of  both  sexes,  which  they  called  an 
"Academy."  I  forget  whether  they  procured  for  it  an  incor 
poration,  but  they  built  a  school-house  and  engaged  a  master. 
The  property  was  held  in  shares  ;  the  right  to  send  pupils 
to  the  school  being  limited  to  the  share-holders.  My 
mother  subscribed  for  one  share,  which  secured  a  seat  in 
the  school  for  my  brother ;  for  me,  she  used  a  share  belong 
ing  to  one  of  her  relatives.  It  was  intended  that  this 
school  should  be  able  to  fit  boys  for  college  ;  and,  so  far  as 
the  association  could  do  what  was  needful,  it  was  an  excel 
lent  plan.  But  the  course  of  studies  was  left  altogether  to 
the  master;  and  none  of  the  masters  remained  long. 

The  first  one  who  opened  the  "  Academy  "  was  a  divinity 
student  from  the  Cambridge  Theological  School,  Warren 
Burton,  afterwards  a  Unitarian  clergyman  and  an  author  of 
some  little  repute.2  Whatever  his  attainments  may  have 
been,  he  was  a  very  unsuccessful  school-master.  He  was 
perpetually  varying  his  methods  of  teaching  and  discipline, 
never  adhering  to  any  one  for  more  than  two  weeks,  and 
constantly  plaguing  our  parents  with  changes  of  the  school- 
books,  and  with  demands  for  new  blank-books  in  which  to 
keep  the  record  of  our  "  marks."  The  parents  could  not 

1  It  used  to  be  said  of  this  lady  that  she  could,  and  often  did,  rock  her 
baby's  cradle,  darn  a  stocking,  and  hear  a  boy's  Greek  lesson,  at  one  and 
the  same  time. 

2  "  The  Village  Choir  "  and  "  The  District  School  as  it  was  "  were  among 
his  productions. 


1823.]  WATERTOWN  ACADEMY.  13 

respect  him  as  a  teacher,  and  even  the  youngest  pupils  in 
the  school  understood  and  laughed  at  his  eccentric  fickle 
ness.  He  went  away  at  the  end  of  a  year,  with  great 
dissatisfaction  on  all  sides.  Yet  I  believe  he  was  a  thor 
oughly  good  man,  and  meant  to  do  his  duty.  His  misfor 
tune  was  that  he  did  not  know  how  to  manage  children. 
I  never  had  any  acquaintance  with  him  in  after  life. 

Mr.  Burton  was  succeeded  by  a  Mr.  Kendall,  a  graduate 
of  Bowdoin  College,  of  whom  I  remember  only  that  he 
seemed  to  be  a  fair  Latin  scholar,  that  his  favorite  classic 
was  Ovid's  "  Metamorphoses,"  and  that  he  chewed  tobacco 
inordinately.  He  was  our  teacher  for  a  very  short  time. 
After  him  came  a  third  master,  Joseph  H.  Abbot,  also  a 
graduate  of  Bowdoin,  of  whom  I  remember  nothing  except 
ing  that  he  was  a  mild  and  gentleman-like  person,  and  had 
no  offensive  ways.1  The  last  master,  John  Appleton,  I 
remember  with  great  distinctness  and  pleasure,  and  have 
since  known  him,  although  we  have  met  but  rarely  in  this 
long  interval  of  more  than  fifty  years.  He  became  an  emi 
nent  lawyer  in  Maine,  and  is  now  the  Chief  Justice  of  that 
State.  I  think  my  brother  gained  more  from  Mr.  Apple- 
ton  than  he  did  from  all  the  previous  masters  whom  he  had 
attended.  He  was  a  good  teacher,  and  a  person  of  superior 
mind.2 

1  Mr.  Abbot  was  a  teacher  all  his  life.     For  many  years  he  kept  a  school 
for  young  ladies  in  Boston.     He  was  a  member  of  the  American  Academy 
of  Arts  and  Sciences,  and  wrote  various  papers  published  in  its  "  Memoirs." 
He  died  about  a  year  since. 

2  Judge  Appleton  has  recently  written  to  me  as  follows  :  — 

"  I  recollect  your  brother  perfectly  as  a  student  and  as  a  young  man. 
He  was  a  fine  scholar,  very  punctual  and  attentive  to  his  duties,  and  never 
failing  in  his  recitations.  I  remember  him  for  his  manly  bearing  above  his 
years.  He  then  gave  abundant  promise  of  that  high  distinction  to  which 
he  subsequently  attained.  He  was  the  best  scholar  I  had  during  my  school- 
keeping  days. 

"  I  am  very  glad  you  propose  publishing  his  miscellaneous  writings,  to 
gether  with  a  Memoir.  His  judgments  while  on  the  bench  are  monuments 
of  unanswerable  logic  and  thorough  learning,  which  will  endure  as  long  as 
the  Constitution  which  he  so  ably  expounded.  It  is  due  to  him  that  his 


14  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1824. 

But,  after  Mr.  Appleton's  departure,  my  mother  be 
came  very  anxious  about  my  brother's  progress  in  his 
studies.  The  late  Rev.  Convers  Francis,  D.D.,  had  then 
lately  been  settled  as  the  clergyman  of  our  parish;  the  con 
gregation  having  become  Unitarian,  in  the  course  of  the 
change  which  took  place  in  so  many  of  the  old  congrega 
tional  parishes  of  Eastern  Massachusetts.1  Mr.  Francis 
was  a  scholar,  as  scholarship  Avas  attainable  in  his  time. 
He  was,  moreover,  a  kind  and  faithful  parish  clergyman,  and 
he  had  become  a  warm  friend  of  my  mother.  He  offered 
to  have  my  brother  come  to  him  of  evenings  for  instruction, 
without  being  willing  to  receive  any  remuneration.2  This 
arrangement  continued  until  my  brother  was  sent,  in  the 
year  1824,  to  a  boarding-school  kept  by  the  late  Mr.  John 
Angier,  in  Medford,  where  his  preparation  for  college  was 
finished. 

For  a  good  while,  however,  after  my  mother  first  resolved 
that  rny  brother  should  be  sent  to  Harvard,  it  was  exceed- 

memory  should  be  preserved  in  a  permanent  form.  I  have  no  recollection 
of  any  particular  fact  relating  to  your  brother,  but  only  the  recollection  of 
his  remarkable  promise. 

"  Of  your  mother  I  have  the  most  agreeable  recollections,  as  one  of  the 
pleasantest  and  best  women  I  ever  had  the  pleasure  of  knowing." 

1  Mr.  Francis  was  settled  as  minister  of  the  territorial  parish  of  Water- 
town  in  June,  1819.     He  succeeded  the  Rev.  Richard  R.  Elliott,  whose 
funeral  I  remember.     The  pulpit  of   the  "  meeting-house  "  was  draped  in 
black  cloth,  which  was  taken  down  afterwards  and  given  as  a  melancholy 
kind  of  perquisite  to  his  widow. 

2  Lydia  Maria  Francis,  sister  of  our  clergyman,  more  widely  known  after 
her  marriage  as  Mrs.  Lydia  Maria  Child,  resided  with  her  brother  at  this 
time,  and  was  very  intimate  in  my  mother's  family  when,  at  the  age  of  two- 
and-twenty,  she  published  anonymously  her  first  book,  "  Hobomok,  a  Tale." 
The  mention  of  this  little  novel  recalls  to  me  the  just  and  at  the  same  time 
amusing  criticism  with  which  its  story  was  received,  while  its  general  merits 
were  freely  acknowledged.     The  heroine  was  a  Puritan  girl,  in  one  of  the 
early  settlements  of  Massachusetts.     The  lover  to  whom  she  was  betrothed 
was  reported  and  believed  to  have  been  lost  at  sea.     After  a  long  mourning, 
she  consents  to  marry  Hobomok,  a  young  Indian  chieftain,  who  had  fol 
lowed  her  with  romantic  devotion  for  several  years.     There  is  a  son  born. 
The  English  lover  returns.     Hobomok,  coming  home  one  evening  from  a 
hunting  expedition,  laden  with  game,  sees  his  rival,  and  is  frightened  by  the 
idea  that  he  has  risen  from  the  dead.     The  Great  Spirit  has  decreed  that 


1824.1  ME.  ELISHA  TICKNOR.  15 

ingly  doubtf  id  how  the  expense  of  such  an  education  was  to 
be  defrayed.  It  never  could  have  been,  or  at  least  my 
mother  never  could  have  had  the  courage  to  undertake  it 
herself,  if  it  had  not  been  for  a  kind  and  considerate  act  of 
Mr.  Elisha  Ticknor.  I  have  mentioned  that  this  gentle 
man  married  my  grandmother,  the  widow  of  Dr.  Benja 
min  Curtis,  in  1791.  He  always  felt  towards  his  wife's 
children  by  her  former  marriage,  and  her  grandchildren,  as 
if  they  had  been  his  own.  At  his  death,  in  1821,  he  of 
course  gave  the  bulk  of  his  fortune  to  his  only  son  and  only 
child,  the  late  Mr.  George  Ticknor.  But  he  did  not  forget 
the  two  widows,  one  of  whom  was  the  daughter  and  the 
other  the  daughter-in-law  of  his  deceased  wife.1  The  pro 
visions  of  his  will,  in  regard  to  my  mother,  require  a  little 
detailed  explanation. 

She  was  entitled  to  a  small  share  of  her  father's  estate  in 
Watertown,  for  which  a  part  of  his  house  was  set  off  to  her 
when  her  mother's  dower  was  assigned  in  another  part  of  it. 
The  year  following  her  father's  death,  she  joined  with  her 
husband  in  a  deed  of  this  property  to  Mr.  Elisha  Ticknor. 

Hobomok  must  give  up  his  wife.  He  contrives,  unseen,  to  embrace  his  boy, 
then  lays  the  game. at  the  door  of  his  wife's  cottage,  and  sorrowfully  departs 
into  the  wilderness  for  ever.  The  two  original  lovers  meet,  and  after  a  time 
are  united  in  wedlock.  The  story  was  told  with  much  beauty  and  pathos  ; 
but  all  the  talent  in  the  world  could  not  reconcile  readers  to  the  glaring 
unnaturalness  of  the  character  of  Hobomok,  whose  tomahawk,  some  said, 
would  have  been  the  most  likely  mode  of  settling  the  difficulty  ;  and  all 
New  England  was  moved  to  something  like  anger  at  the  thought  of  such 
a  mesalliance  as  the  Indian  marriage  being  tolerated  by  our  "  Pilgrim  Fathers." 
I  do  not  remember  how  the  dissolution  of  the  first  marriage  was  managed. 
In  her  next  work,  "  The  Rebels,  a  Tale  of  the  Revolution,"  the  fair  author 
ess  did  much  better. 

I  have  not  seen  Mrs.  Child  for  fifty  years.  Had  we  met  at  some  periods 
in  this  interval,  differences  of  opinion  on  public  topics  on  which  she  was  an 
enthusiast  might  have  alloyed  the  pleasure  of  our  intercourse.  But  grati 
tude  for  her  brother's  kindness  to  my  family,  and  a  lively  recollection  of 
the  brilliancy  of  her  youth,  lead  me  to  express  the  sincere  hope  that  the 
evening  of  her  days  is  happy,  and  that  it  may  so  continue  to  the  end. 

1  My  grandmother  died  in  1819.  Her  eldest  daughter,  Eliza  Curtis,  had 
married  Mr.  William  H.  Woodward,  of  Hanover,  N.  H.,  and  was  now  a 
widow. 


16  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1824. 

It  was  not  a  conveyance  in  trust  for  her,  but  it  was  an 
absolute  deed  to  Mr.  Ticknor,  given  for  money  advanced  by 
him  to  my  father ;  and  no  doubt  the  sum  named  in  the  deed 
was  the  full  value  of  the  interest,  if  not  more  than  the 
value.  Mr.  Ticknor  was  under  no  obligation  to  restore 
this  little  property  to  my  mother.  But  she  continued  to 
occupy  it  down  to  the  time  of  Mr.  Ticknor's  death,  in 
1821.  It  was  then  found  that  he  had  devised  it  to  a 
trustee,  in  trust,  to  apply  it  to  my  mother's  use,  but  with 
power  to  sell  it,  on  her  request,  and  to  apply  the  proceeds 
to  the  maintenance  and  education  of  her  children,  in  such 
manner  as  she  might  desire.  He  also  directed  his  trustee 
to  pay  to  her,  for  the  period  of  ten  years,  the  sum  of  one 
hundred  dollars  per  annum  for  the  same  purpose.  In 
addition  to  this,  by  a  codicil  to  his  will,  he  devised  to  the 
same  trustee  a  small  farm  in  the  town  of  Dunstable,  on  the 
border  of  New  Hampshire,  on  the  same  trusts  and  with 
the  same  power  of  sale  in  case  of  my  mother's  request. 
The  little  capital  of  these  two  estates  could  not  have 
exceeded  the  sum  of  three  thousand  dollars.  My  mother 
needed  her  share  in  the  Watertown  house  as  a  home.  The 
rent  of  the  Dunstable  farm  must  have  been  very  small.  It 
wras  all  the  income  she  had,  besides  the  one  hundred  dol 
lars,  and  what  she  could  derive  from  the  small  business 
which  she  had  carried  on  for  some  years. 

But  her  decision  was  soon  made.  Money  was  taken  up 
on  this  property  from  time  to  time,  until  its  value  was 
exhausted ;  and  it  then  passed  into  the  hands  of  a  relative 
wrho  had  made  the  advances  on  it.  My  mother  thought 
that  to  devote  it  as  far  it  would  go  to  the  education  of  her 
sons  was  the  best  use  that  could  be  made  of  it,  and  that 
this  would  fulfil  the  implied  —  though  they  were  only  the 
implied — intentions  of  the  kind  testator,  who  had  ever- 
treated  her  as  a  daughter. 

It  may  be  suggested  that  many  a  boy  has  worked  his 
own  way  through  college  and  into  a  life  of  usefulness  and 


1824.]  A  MOTHER'S  DEVOTION.  17 

distinction.  Such  efforts  are  not  to  be  undervalued.  But, 
in  giving  an  account  of  my  brother's  early  life,  I  owe  a 
duty  to  the  memory  of  a  parent  whose  exertions  and 
sacrifices  gave  both  of  us  our  educations,  and  who  did  not 
deem  it  well  that  the  years  which  ought  to  be  devoted  to 
study  should  be  harassed  with  earning  bread  and  clothes, 
and  the  means  of  paying  tuition  fees.  She  preferred  to 
spend  the  little  all  that  she  had,  taking  upon  herself  the 
risk  of  destitution  when  her  plan  had  been  accomplished. 
She  had  once  sacrificed  all  that  she  could  give  up  to  her 
husband.  She  now  sacrificed  it  again  for  her  children. 
But  she  lived  for  many,  many  years,  saw  the  honors  and 
distinctions  that  were  bestowed  unsought  upon  her  eldest 
son,  and  felt  that  her  mission  had  been  fulfilled.1 

I  have  paid  this  tribute  to  the  revered  memory  of  the 
excellent  man  who  put  it  in  my  mother's  power  to  obtain 
what  had  become  the  great  object  of  her  life,  not  forgetting 
what  is  also  due  to  the  memory  of  his  accomplished  son. 
When  Mr.  George  Ticknor  learned  my  mother's  purpose  to 
send  her  eldest  son  to  Harvard,  he  feared  at  first  that  it  was 
too  great  an  undertaking  for  her,  and  that  it  would  involve 
sacrifices  which  she  ought  not  to  make.  But  when  he  ap 
preciated  the  strength  of  her  resolution,  he  gave  her  his 
unfailing  sympathy  and  encouragement,  and  his  ever  wise 
and  affectionate  counsels.2 

1  In  1866,  when  she  was  nearly  eighty,  she  one  day  sent  to  my  brother's 
wife  a  lock  of   hair,  with  the   following  words,  written   in   the  trembling 
hand  of  age,  on  the  paper  which  enclosed  it:    "  This  silky  lock  of  hair  was 
cut  from  the  head  of  my  son,  B.  K.  Curtis,  in  the  second  year  of  his  age, 
1811.     Is  it  not  in  as  good  preservation  as  the  lovely  little  child's  frock1? 
Do  take  pains  to  preserve  it,  for  I  always  have  kept  it  with  my  jewels,  — 
and  I  can  say  he  has  never  given  me  a  pain  in  my  heart.     MOTHER.     1866." 

2  In   their  connection  with  him,  there  were  blessings  which  his  young 
kinsfolk  had  reason  to  remember  throughout  their  lives.    Of  a  numerous  cir 
cle  of  his  half  nephews  and  nieces,  I  am  the  only  survivor  but  one.     In  this 
commemoration  of  his  domestic  virtues,  his  kindness,  his  strong  and  active 
interest  in  the  welfare  of  all  who  were  near  to  him,  I  may  speak  not  only 
for  myself,  but  for  those  who  are  no  longer  here  to  bear  testimony  to  his 
worth,  or  to  record  what  they  owed  to  his  love. 

VOL.  i.  2 


18  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1824. 

The  first  religious  impressions  of  any  man  of  distinction 
are  an  important  item  in  an  account  of  his  life  and  charac 
ter.  In  the  present  case  they  are  peculiarly  so.  My  brother 
was  through  life  a  man  of  very  strong  religious  feelings  and 
principles.  They  were  derived  partly  from  his  mother,  and 
partly  from  the  Unitarian  influences  which  surrounded  his 
youth. 

The  early  "  Unitarianism "  of  Boston  and  its  vicinity 
was  no  exotic  transplanted  from  abroad.  It  sprung,  so  to 
speak,  from  the  soil.  It  was  a  revolt  and  protest  against 
the  old  Calvinism  of  New  England,  spontaneously  arising 
in  the  midst  of  a  system  of  faith  to  which  a  more  culti 
vated  and  reasoning  generation  could  not  continue  to  sub 
mit  without  peril  to  their  religious  convictions.  The  men 
of  powerful  and  liberal  minds  —  able  preachers  and  learned 
controversialists  —  who  led  this  movement,  might  have 
found  in  the  beautiful  liturgy  and  more  comprehensive 
spirit  of  the  Episcopal  Church  what  would  have  satisfied 
their  aspirations  for  a  faith  different  from  that  of  their 
fathers,  and  so  they  might  have  taken  refuge  in  that  Church 
from  the  gloomy  and  oppressive  creed  that  had  come  down 
from  the  Puritans,  had  it  not  been  for  certain  obstacles 
and  preventions  which  were  both  negative  and  positive  in 
their  operation.  In  the  first  place,  the  Episcopal  Church 
had  never  been  a  strong  and  active  force  in  the  religious 
world  of  New  England.  A  few  sleepy  old  churches  of  that 
denomination,  a  few  "  bishops  and  other  clergy,"  who 
were  not  men  of  any  energy,  constituted,  in  the  latter  part 
of  the  last  and  the  early  part  of  the  present  century,  all  of  a 
"  church  militant  "  that  the  Episcopal  body  presented  to  the 
people  of  that  region.  The  Episcopal  Church,  therefore, 
was  not  in  a  condition  to  win  large  accessions  from  the 
traditionary  faith  and  form  of  Congregationalism  ;  although, 
Puritan  antagonism  being  left  out  of  the  case,  that  Church 
had  a  great  deal  that  might  have  suited  the  tastes  of  men 
and  women  of  cultivation.  But  the  eminent  preachers  and 


1824.]  EARLY   UNITARIANS.  19 

theologians  who  became  the  great  leaders  of  Unitarianism 
were  all  born  and  educated  as  Congregationalists.  They 
could  not  adopt  episcopal  ordination,  nor  could  they  lead 
their  congregations  to  adopt  it.  They  did  not  try  to  be 
lieve  that  "  apostolic  succession  "  was  any  the  less  likely  to 
exist  when  a  man  is  inducted  into  the  sacred  office  of  a 
clergyman  by  his  brethren  in  the  ministry,  and  with  the 
assent  and  approbation  of  a  Christian  laity,  than  when  he  is 
consecrated  to  that  office  by  the  "  laying  on  of  hands  "  of  a 
bishop.  They  could  not  have  so  believed,  if  they  had  tried  ; 
for  their  early  convictions,  associations,  and  habits  were  all 
opposed  to  such  a  belief.  Situated  as  they  were,  they  could 
not  seek  to  change  the  frame-work  of  the  Congregational 
order.  While  they  were  iconoclasts  in  their  attitude  to 
wards  many  of  the  doctrines  of  the  popular  faith,  they  were, 
both  by  temperament  and  by  the  force  of  circumstances, 
strictly  conservative  in  every  thing  else.  They  sought  to 
reform  the  creeds,  but  not  to  change  the  structure  of  their 
church  organization. 

In  this  reformation  of  the  popular  religious  belief,  they 
assailed  the  doctrine  of  the  Trinity,  because  they  found  it 
associated  with  other  doctrines  which  were  exerting,  as  they 
believed,  a  pernicious  influence  upon  the  religious  feelings 
and  the  lives  of  men,  and  because  their  studies  had  con 
vinced  them  that  the  Trinity  is  not  taught  in  the  Scrip 
tures  as  an  article  of  belief  ;  while  it  is,  as  they  viewed  it,  a 
conception  utterly  repugnant  to  reason,  and  therefore  one 
that  places  the  human  mind  in  an  attitude  unfavorable  to 
the  reception  of  Christianity.  They  might  perhaps  have 
considered  that  there  are  as  many  texts  of  Scripture  which 
appear  to  assert,  as  there  are  of  those  which  appear  to  mili 
tate  against,  this  doctrine  ;  and  that,  if  a  belief  in  revelation 
and  in  what  is  embraced  in  the  Christian  scheme  of  re 
demption  is  to  be  received  at  all,  the  conception  of  a  triune 
God  is  no  more  a  mystery,  and  no  more  above  the  reach 
of  the  human  faculties,  than  is  the  conception  of  an  infinite 


20  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1824. 

Deity,  who  is  self-existent',  eternal,  who  never  had  a  be 
ginning,  and  can  have  no  end.  Whenever  the  human  mind 
penetrates  beyond  the  bounds  of  the  material  universe,  and, 
exploring  the  realms  of  spiritual  existence,  tries  to  reach 
the  idea  of  God,  as  that  idea  is  presented  by  Christianity, 
it  must  find  mysteries  which  it  cannot  understand,  and 
which  it  may  be  perfectly  consistent  with  the  Divine 
purposes  to  suppose  are  to  be  received  by  faith,  and  not  by 
that  kind  ot  demonstrative  proof  which  human  faculties  can 
grasp. 

But  whether  these  men  erred  or  did  not  err  in  their  con 
ception  of  the  Godhead  and  the  nature  of  Christ,  it  is  cer 
tain  that  they  did  not  weaken,  in  their  own  minds  or  the 
minds  of  others,  the  attributes  of  the  eternal  and  infinite 
Creator,  as  those  attributes  are  regarded  in  all  Christendom, 
by  asserting  that  his  existence  is  one,  unshared,  undivided, 
and  supreme.  Nor,  if  I  am  capable  of  comparing  the  effects 
of  their  theological  teachings  with  what  I  have  seen  of 
other  systems  of  Christian  belief,  did  they  aim  to  displace 
the  Saviour  of  mankind  from  the  office  of  a  Mediator  and  a 
Redeemer ;  for  they  believed  and  taught  that  he  was  the 
Son  of  God.  specially  designated,  in  infinite  mercy  and 
wisdom,  to  the  reconcilement  of  man  with  his  Creator. 
Nor  yet  did  they  less  accept  or  teach  the  influence  of  the 
Holy  Spirit,  although  they  denied  to  it  a  personality  at 
once  separate  from  and  a  part  of  the  "  very  God." 

In  all  things  else  that  should  mark  a  Christian  ministry, 
—  in  piety,  in  learning,  in  devout  and  useful  lives,  in  the 
rebuke  of  sin,  in  the  inculcation  of  all  Christian  duties,  in 
exposition  of  all  the  Christian  morality,  adapting  it  to 
the  conditions  of  modern  society  without  impairing  its 
authority,  and  in  bringing  the  consolations  of  religion  to  the 
afflicted  and  the  dying,  —  these  early  Unitarian  preachers 
of  New  England  were,  as  a  body,  the  equals  of  any  clergy 
of  whom  I  have  ever  had  knowledge. 

Such  was  the  spirit  of  "  Unitarianism  "  from  which  my 


1824.]  BOYISH   TRAITS.  2] 

brother  received  the  religious  impressions  of  his  youth,  so 
far  as  they  were  to  be  derived  from  public  teaching,  from  the 
public  services  of  religion,  and  from  the  Sunday  school.  His 
mother's  religious  character  was  very  simple,  but  her  relig 
ious  influence  was  not  therefore  the  less  strong.  She  read 
her  Bible,  and  she  did  her  duty.  She  was  a  constant 
attendant  on  the  public  religious  services,  and  a  communi 
cant  in  the  church.  She  taught  her  children  to  repeat  the 
Lord's  Prayer,  and  those  simple  hymns  which,  clothed  in 
homeliest  words  of  our  English  tongue,  best  accustom  the 
mind  of  childhood  to  the  primary  religious  truths.  She 
did  not  much  concern  herself  with  the  religious  controver 
sies  that  were  then  so  rife  in  the  world  around  her.  Ac 
cording  to  her  feelings,  the  great  idea  that  is  to  predominate 
over  all  others  is  the  idea  of  God  and  our  responsibility  to 
him.  I  think  that  she  made  a  sense  of  this  responsibility 
the  one  chief  trait  in  my  brother's  religious  character  ;  and 
it  will  be  seen  hereafter  that  the  fear  of  God  was  the  only 
fear  under  which  he  ever  acted. 

As  I  have  now  reached  the  period  of  his  first  absence 
from  home,  when  the  boy  begins  to  develop  rapidly  into  the 
man,  I  must  say  something  of  the  kind  of  boy  he  was  before 
this  time,  in  other  respects  than  in  learning  or  religious 
training.  He  was,  in  fact,  a  rather  universal  boy ;  that  is 
to  say,  whatever  a  boy  of  sound  moral  organization  may 
do,  he  could  and  did  do  with  energy  and  success.  He  was 
always  a  leader  in  all  boyish  games,  —  strong,  plucky,  active, 
and  skilful.  He  was  never  quarrelsome.  I  never  knew 
him  to  be  in  a  fight ;  but  he  had  that  about  him,  in  what 
ever  collisions  he  had  with  his  fellows,  that  would  make 
"  the  opposer  beware  of  "  him,  and  that  rendered  blows  un 
necessary.  He  had  a  great  deal  of  mechanical  skill,  and 
generally  made  his  own  playthings  and  implements  of 
sport,  as  well  as  mine.  He  was  an  unrivalled  builder  and 
flyer  of  kites,  often  sending  one  far  towards  the  clouds  and 
keeping  it  there  for  hours.  We  had  three  maternal  uncles, 


22  MEMOIR   OF    BENJAMIN   BOBBINS    CURTIS.  [1824. 

who  were  all  more  or  less  sportsmen.1  They  furnished  him 
with  a  gun,  and  with  such  fishing-tackle  as  he  did  not  make 
for  himself.  He  shot  the  feathered  game  of  the  neigh 
borhood,  before  he  was  thirteen,  with  great  success  ;  and 
as  to  the  fish  with  which  our  beloved  old  river  abounded, 
he  knew  all  their  haunts  and  habits,  times  and  seasons, 
and  pursued  them  with  remarkable  skill.  He  took  to 
trout-fishing,  however,  much  later. 

Years  afterwards,  when  he  came  to  the  bar,  it  was  observed 
that  he  had  a  remarkable  aptitude  for  all  that  class  of  liti 
gations  which  relate  to  water-powers,  flowage  of  lands,  and 
the  like ;  and  some  of  his  contemporaries  speculated  a  good 
deal  about  the  origin  of  his  familiarity  with  the  practical 
details  of  these  subjects.  One  account  of  the  matter  is,  as 
I  have  recently  learned,  that,  when  a  boy,  he  resided  for 
a  time  Avith  a  distant  relative,  who  had  a  woollen  mill  on 
the  Concord  River.  We  had  such  a  relative  in  the  town 
of  Billerica,  but  my  brother  never  resided  there.  The 
truth  is  that,  having  been  born  on  the  banks  of  the  Charles 
River,  in  the  near  neighborhood  of  the  "  Watertown  dam," 
the  oldest  water-power  in  America,  and  one  of  considerable 
importance  in  its  time,  he  did  not  need  to  go  away  from 
home  to  learn  whatever  an  intelligent  boy  could  observe 
of  such  things.  Our  boyhood  was  spent,  when  not  at  our 
books,  in  roaming  up  and  down  the  dear  old  Charles,  either 
on  its  banks,  or  on  its  bosom  in  canoes.  Every  foot  of  its 
course  for  several  miles,  every  stone  of  its  bed,  every  pool 
and  every  shallow,  its  freshets  and  its  droughts,  the  lawful 
height  of  the  "  flash-boards  "  on  its  dam,  and  the  distribu- 


1  James,  George,  and  Isaac  Bobbins.  They  were  all  engaged  in  a  manu 
facturing  business.  But  the  eldest,  Mr.  James  Robbins,  was  very  fond  of 
farming,  and  was  a  good  amateur  farmer.  Through  him,  my  brother  saw  a 
great  deal  of  agricultural  operations  in  his  early  days ;  and  his  agricultural 
tastes  —  in  which,  as  will  be  seen  hereafter,  he  indulged  largely  in  middle  life 
—  were  imbibed  I  think  in  his  boyhood,  in  the  rural  scenes  of  his  native  place 
and  on  his  uncle's  lands.  This  uncle  died  in  1830,  at  the  early  age  of 
thirty-eight. 


1824.]  GOLNTG  TO   HARVARD.  23 

tion  of  its  "  power  "  to  the  different  uses  to  which  it  was 
appropriated,  were  as  familiar  to  us  as  our  alphabet.  Its 
glancing  waters,  glistening  in  the  sunrise,  presented  the 
first  object  in  nature  that  saluted  our  waking  eyes,  and  the 
gentle  and  unbroken  music  of  their  fall  was  our  evening 
lullaby.  In  process  of  time,  we  learned  how  the  proprietors 
of  water-rights  higher  up  the  stream  could  complain  of 
"  back-water ; "  and  I  remember  one  litigation  of  this  sort 
that  was  carried  on  before  referees  sitting  at  our  village 
tavern,  in  which  eminent  counsel  from  Boston  took  part, 
and  at  which  we  boys  were  among  the  audience. 

But  when  my  brother  went  to  the  school  in  Medford,  it 
seemed  as  if  he  had  suddenly  turned  his  back  upon  boyhood 
and  most  of  its  interests.  After  he  had  been  there  about 
a  fortnight,  he  came  home  on  a  Saturday  morning,  to 
remain  until  the  following  Monday.  I  had  looked  forward 
to  his  visit  with  a  childish  anticipation  of  some  of  the  old 
fun.  But  he  was  very  grave  and  dignified.  A  slight 
change  of  dress  to  a  more  manly  style,  a  sense  that  he  was 
now  near  the  gates  of  Harvard,  and  contact  with  older  boys 
from  different  places,  had  outwardly  transformed  him.  He 
was  very  kind  and  gentle  ;  but  as  to  flying  a  kite,  or  wading 
with  me  in  the  river  to  catch  minnows  as  bait  for  pickerel, 
—  such  things  were  out  of  the  question.  His  talk  was  now 
of  the  ^Eneid,  and  algebraic  equations  ;  whether  So-and-so, 
who  was  studying  for  a  Sophomore  examination,  was  likely 
to  "  get  in  ;  "  and  what  was  going  on  at  Cambridge,  whence 
some  of  the  former  pupils  of  the  school,  now  become  great 
men  in  the  undergraduate  world,  came  over  sometimes  to 
Medford,  to  display  their  "  crow's-feet" 1  and  enlarge  the 
minds  of  their  probable  successors.  I  listened  to  all  this 
with  wonder  akin  to  awe. 

1  The  undergraduates  of  Harvard,  at  that  time,  were  required  to  wear  a 
uniform,  consisting  entirely  of  black  cloth,  and  a  black  or  white  cravat. 
The  coat  had  an  ornament  worked  on  the  cuff  of  the  sleeve  in  black  silk 
braid,  which  was  called,  I  know  not  by  what  token  or  derivation,  a  "  crow's- 


24  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1825 

Before  he  went  to  the  school  in  Medford,  lie  had  not 
been  exercised  in  written  composition  at  any  of  the  schools 
he  had  attended ;  and,  as  he  had  never  been  absent  from 
home  before  for  any  length  of  time,  he  had  not  had 
much  occasion  for  writing  letters.  There  is  extant,  how 
ever,  among  his  mother's  papers,  in  his  boyish  hand,  a 
"  theme,"  or  composition,  which  he  wrote  at  the  school  in 
Medford,  after  he  had  been  there  for  some  months.  He 
sent  it  to  her,  with  these  words  written  on  the  back  of  the 
paper :  "  You  must  not  show  this  to  any  one ;  if  you  do,  I 
shall  not  let  you  see  any  more."  No  doubt  she  faithfully 
observed  the  injunction,  but  death  has  dissolved  its  obliga 
tion.  I  give  the  essay  here,  as  the  earliest  known  writing 
of  Benjamin  R.  Curtis  :  — 

ON  THE  ORIGIN  OF  EVIL. 

Perhaps  there  is  no  moral  subject  that  could  be  proposed,  about 
which  there  always  has  been,  and  is  at  present,  so  great -a  diversity 
of  opinion  as  on  this.  Many  have  thought  that  there  are  two 
powers  acting  in  creation,  —  the  one  evil,  the  other  good.  This 
idea  is  common  to  many  savage  nations.  The  nations  of  North 
America,  for  instance,  worship  both  a  good  and  evil  spirit ;  and 

foot."  A  Sophomore  wore  one  of  these  badges,  a  Junior  two,  and  a  Senior 
three.  A  Freshman  was  not  allowed  to  wear  any.  Perhaps  the  customary 
law  of  our  present  Harvard,  enforced  by  the  Sophomore  classes  as  part  of 
the  unwritten  code,  which  prohibits  a  Freshman  from  wearing  that  species  of 
high-crowned  hat  known  as  a  "beaver,"  is  derived  from  that  earlier  law 
which  did  not  allow  the  Freshman  a  "  crow's-foot."  I  suggest  this  as  a 
curious  subject  in  the  origin  and  history  of  such  codes.  In  my  brother's 
time  and  mine,  the  college  laws  enforced  this  uniformity  of  dress  with  some 
rigor.  It  was  therefore,  with  the  "  swells,"  the  daring  thing  to  appear  at 
chapel  with  a  party-colored  cravat ;  and  I  have  known  the  audacity  of  a 
claret  coat  with  a  velvet  collar  to  be  sported  in  the  "  college  yard  "  by  some 
Senior  near  the  beginning  of  the  long  vacation,  to  the  great  wonder  of 
admiring  fellow-students.  At  one  period,  a  monstrosity  was  introduced,  in 
the  shape  of  a  high  imitation  of  the  Oxford  cap  ;  but  the  imitation  was  a 
bad  one,  and  it  did  not  last  a  great  while.  The  University  has  long  since 
given  up  such  puerilities,  and  allows  its  students  the  freedom  of  any  dress 
for  every  day  that  they  choose  to  wear.  An  academical  costume,  for  days 
of  public  ceremony,  no  one  would  wish  to  see  laid  aside. 


EARLIEST   WRITING.  2o 

when  any  evil  befalls  them,  they  attribute  it  to  the  evil  spirit,  and 
when  they  receive  any  good,  they  thank  the  good  spirit.  But  this 
opinion  is  not  confined  to  savages,  but  exists,  though  perhaps  in  a 
different  form,  in  our  own  times,  and  in  our  own  country.  Many 
believe  that  there  is  an  evil  spirit,  who,  though  less  powerful  than 
the  good  one,  has  power  enough  to  counteract  and  oppose  many  of 
the  designs  of  God  ;  and  when  He  would  make  happiness  and  good 
ness,  he  by  his  power  often  converts  them  into  sin  and  misery. 
They  do  not  think  that  this  spirit  is  independent,  but  that  he  holds 
his  power  from  God,  who  permits  him  to  exercise  it  upon  man. 
But  I  think  it  is  an  insult  upon  the  wisdom  of  God  to  suppose  that 
He  would  give  power  to  an  evil  spirit  to  oppose  and  counteract  His 
designs  and  purposes,  when  He  could  have  withheld  it ;  and  that  He 
could  withhold  it  there  is  no  doubt.  Besides,  I  conceive  man  to  be 
an  accountable  creature ;  but  this  would  take  away  all  his  respon 
sibility,  to  attribute  all  his  sins  to  the  instigation  of  an  evil  spirit, 
and  it  would  make  him  like  a  block  of  marble  in  the  hands  of  two 
statuaries,  one  of  whom  was  continually  endeavoring  to  make  it 
a  handsome  and  well-proportioned  statue,  and  the  other  a  deformed 
and  ugly  one.  But  there  is  another  class  of  people  who  attribute 
the  origin  of  moral  evil  to  a  different  source,  which  is  the  depravity 
of  human  nature :  they  say  that  man  is  naturally  corrupt  and  in 
clined  to  sin  ;  that  he  inherits  this  corrupt  inclination  from  the 
father  of  his  race,  who  fell  by  eating  the  forbidden  fruit,  and  if  he 
had  not  eaten  it  there  would  have  been  no  death  or  sin  in  the  world ; 
and  to  this  cause  they  attribute  the  origin  of  evil.  But  I  do  not 
believe  in  the  depravity  of  man ;  I  do  not  believe  that  God  would 
implant  in  the  breast  of  man  a  passion  the  first  impulse  of  which 
would  be  to  teach  him  to  break  His  laws.  Neither  do  I  believe 
that  the  first  man  differed  in  any  respect  from  others  of  his  race,  but 
that  he  had  the  same  passions  and  inclinations,  and  was  placed  here 
in  a  state  of  probation  for  a  better  world,  and  that  the  sin  of  Adam, 
who  was  the  father  of  all  mankind,  was  any  more  the  origin  of  evil 
than  the  sin  of  a  father  of  the  present  day  is  the  origin  of  the 
wickedness  of  his  children.  But  I  think  that  the  true  cause  of 
moral  evil  in  the  world  is  that  men  conceive  that  there  is  some 
pleasure  in  sin  independent  of  the  crime  itself ;  for  I  think  no  one 
would  do  wrong  merely  for  the  sake  of  doing  wrong,  but  for  the 
sake  of  some  pleasure  or  advantage  that  he  imagined  to  be  con 
tained  in  it,  and  he  would  a  thousand  times  rather  have  obtained 


26  MEMOIR   OF   BENJAMIN    BOBBINS    CURTIS.  [1825. 

the  advantage  without  the  sin  if  he  could ;  but  as  he  could  not,  the 
imagined  pleasure  or  advantage  outweighed  his  abhorrence  of  sin, 
or  in  other  words  the  temptation  was  greater  than  he  could  bear. 
From  what  has  been  said  I  think  that  we  may  conclude  that  the 
origin  of  evil  is  to  be  attributed  neither  to  the  agency  of  an  evil 
spirit  nor  the  natural  depravity  of  man,  but  to  some  pleasure  or  ad 
vantage  which  outweighs  a  man's  abhorrence  of  sin ;  and  then  and 
then  only  he  will  commit  it. 

BENJAMIN   R.   CURTIS. 
April  17,  1825. 

This  little  essay,  written  by  a  lad  who  was  under  the  age 
of  sixteen,  affords  a  striking  proof  of  the  theological  emanci 
pation  effected  in  New  England  by  the  kind  of  preaching 
introduced  by  the  Unitarian  clergy  in  the  early  part  of  this 
century.  The  boy  who  wrote  thus  on  the  origin  of  evil 
could  not  have  thought  and  written  as  he  did  at  that  age, 
if  he  had  been  born  ten  years  earlier,  and  had  been  trained 
only  in  the  prevalent  popular  creeds.  The  paper  shows  that, 
while  he  had  been  taught  to  disbelieve  in  a  "  personal 
devil  "  as  a  being  commissioned  by  the  Almighty  to  intro 
duce  sin  into  the  world,  and  not  to  believe  that  sin  is  a 
necessary  result  of  man's  natural  depravity,  it  is  apparent 
that  he  had  a  conception  of  God  and  his  attributes,  and  a 
sense  of  the  accountability  of  man,  with  which  he  might 
safely  walk  through  life,  from  youth  to  age.  We  get  here, 
too,  the  first  traces  of  that  logical  power  which  was  one  of 
the  strongest  of  his  intellectual  gifts,  applied  to  one  of  the 
most  important  subjects  of  human  contemplation. 

Mr.  Angier  was  a  good  enough  teacher  to  get  his  bright 
and  studious  boys  into  Harvard,  as  he  did  my  brother,  with 
out  "  conditions  ;  "  but  he  certainly  never  imparted  to  any 
of  his  pupils  a  great  amount  of  scholarship,  as  he  did  not 
have  it  himself,  and  he  employed  no  teachers.  The  require 
ments  at  Harvard  in  those  clays  were  pretty  low,  compared 
with  what  they  have  since  been  made.  My  brother  entered 
as  a  Freshman  in  the  autumn  of  1825,  as  well  qualified,  by 


1825.J 


ENTERS   HARVARD. 


27 


his  talent  and  his  studious  habits,  to  take  a  high  rank  as 
any  of  his  classmates.1 

1  John  James  Gilchrist,  who  became  Chief  Justice  of  the  Superior  Court 
of  New  Hampshire,  and  who  was  Chief  Justice  of  the  United  States  Court 
of  Claims  at  the  time  of  his  death,  in  1858,  was  a  contemporary  of  my 
brother  at  the  school  of  Mr.  Angier  in  Medford.  He  entered  Harvard  College 
in  the  same  year  with  my  brother,  but  in  the  Sophomore  class.  He  was 
graduated  in  1828,  in  the  same  class  with  the  Hon.  Robert  C.  Winthrop  and 
the  late  Hon.  George  S.  Hillard. 


28  MEMOIR   OF   BENJAMIN    BOBBINS    CUKTIS.          [1825. 


CHAPTER  II. 

Harvard  College.  —  Trials  of  the  Freshman  Year.  —  A  Mother's  Anxiety 
quickly  relieved.  —  College  Friendships.  — A  Bowdoin  Prize.  —  Rank  as 
a  Scholar.  —  Evident  Capacity  for  the  Legal  Profession.  —  An  Oration  at 
Commencement  not  delivered. 

THE  "Class  of  1829  "  -to  follow  the  Harvard  custom  of 
designating  men  collectively  by  the  year  of  their  graduation 
—  numbered,  when  they  entered,  seventy-one.  It  pleased 
these  young  gentlemen,  before  they  had  got  far  into  their 
Freshman  year,  to  manifest  their  decided  opposition  to  a 
new  rule  made  by  "  the  Faculty,"  they  being  the  first  class 
to  which  it  was  applied.  This  rule  undertook  to  divide  the 
members  of  the  class  into  sections,  not  according  to  the 
alphabetical  order  of  their  names,  as  had  been  the  custom 
from  time  immemorial,  but  according  to  their  proficiency  ; 
and  to  allow  those  who  could  and  did  make  more  rapid 
progress  than  their  less  gifted  or  industrious  companions  to 
go  on  in  a  section  by  themselves  in  certain  studies.  This 
rule  the  Freshmen  of  that  year  (1825)  considered  as  estab 
lishing  invidious  distinctions,  which  are  always  odious  in  a 
college  democracy  when  they  are  new ;  and  even  the  best 
scholars,  like  my  brother,  who  could  have  availed  them 
selves  of  it,  did  not  like  it,  —  it  was  unpopular.  The  oppo 
sition  to  the  rule  was  a  very  serious  affair,  especially  as  a 
minority  of  the  professors  were  supposed  to  disapprove  of 
it.  It  was  understood,  in  the  neighborhood  of  the  College, 
that  the  Freshmen  were  on  the  eve  of  breaking  out  into  a 
"  rebellion."  That  any  of  the  overt  acts  usually  held  to 
constitute  that  insurrectionary  resistance  to  lawful  author- 


1825.]  A  MOTHER'S  ANXIETY.  29 

ity  were  actually  committed,  so  as  to  amount  technically  to 
a  rebellion,  I  do  not  affirm.  But,  however  this  may  have 
been,  the  Freshmen  found  means  to  manifest  their  dis 
pleasure  at  the  new  rule  so  decidedly  that  the  peace  and 
good  order  of  the  College  were  in  some  peril. 

My  mother,  who,  with  all  her  energy  of  character,  was 
of  an  anxious  temperament,  became  disturbed.  She  was 
afraid  that  my  brother,  from  sympathy  with  those  of  his 
classmates  who  were  the  most  excited,  might  be  drawn  into 
some  act  that  he  would  regret,  or  at  least  that  between  the 
Faculty  and  the  class  he  would  be  placed  in  a  trying  situa 
tion.1  As  rumors  of  serious  disturbances  came  thick  and 
fast  to  our  village  —  only  three  and  a  half  miles  from  the 
College  —  she  could  not  restrain  her  solicitude.  She  pro 
cured  a  "  horse  and  chaise,"  2  and,  taking  me  with  her,  drove 
to  Cambridge.  My  brother's  room  was  on  the  ground-floor 
of  Hollis  Hall.  We  reached  it  just  as  the  college  bell 
began  to  ring  for  a  "  recitation,"  and  some  of  the  class,  one 
or  two  of  whom  my  mother  knew  and  greeted,  were  passing 
by  his  door  in  a  rather  tumultuary  frame  of  mind.  As 
soon  as  she  saw  him,  she  begged  him  to  apply  to  the  Presi 
dent  and  obtain  leave  to  go  home,  with  his  books,  and 
remain  for  a  while  until  the  trouble  had  subsided.  It  was 
a  woman's  weakness,  to  wish  to  withdraw  her  son  from 
temptation  or  trial.  He  had  but  a  moment  to  make  his 
answer.  He  turned  round  at  the  door  of  his  room,  and 
said  to  her  with  great  firmness,  but  with  perfect  tenderness, 
"  Mother,  you  had  best  go  home  and  make  yourself  easy 
about  me.  I  shall  take  no  side  in  this  affair.  The  Faculty, 

1  It  must  be  remembered  that  he  was  but  sixteen  years  old.     His  situa 
tion  was  perhaps  a  little  trying,  as  he  was  an  applicant  for  what  was  called 
"exhibition  money,"  to  help  pay  a  part  of  his  tuition  fees.     There  were,  I 
think,  but  very  few  scholarships  in  those  days. 

2  A  New  England  "  chaise  "  was  a  very  comfortable  covered  vehicle,  on 
two  wheels,  drawn  by  a  single  horse.     They  are  nearly  gone  out  of  use,  but 
one  can  be  occasionally  seen.      A  chaise  driven  "tandem"  realized  the 
poetry  of  motion. 


30  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.     [1825-29. 

who  liave  got  us  into  this  scrape,  must  get  us  out  of  it  as 
they  can  :  I  shall  not  help  them.  As  for  the  class,  they 
want  nothing  of  me ;  and  if  they  do,  they  will  get  nothing 
of  me  that  is  wrong."  He  then  returned  to  where  she  sat 
and  kissed  her.  With  this,  he  went  off  to  his  recitation 
at  a  very  measured  pace.  This  judicial  attitude  might 
or  might  not  have  foretold  the  future  magistrate,  but  it 
was  quite  characteristic  of  the  lad  as  he  then  was.  My 
mother  was  satisfied.  I  think  that  she  never,  after  that 
morning,  felt  any  concern  about  him  in  any  emergency  of 
life. 

The  college  lives  of  even  our  most  distinguished  men  can 
present  very  little  of  importance  as  an  indication  of  their 
future  eminence.  The  honors  that  are  to  be  gained  in  the 
English  universities,  if  they  do  not  insure  success  in  the 
professions  or  in  public  life,  seem  to  help  a  man  of  talent 
and  industry  to  make  for  himself  a  career,  because  they  are 
regarded  as  high  certificates  that  he  has  talent  and  industry, 
and  because  they  are  generally  known  to  the  great  body  of 
those  who,  for  the  time  being,  command  the  avenues  to  all 
employments.  What  our  young  men  gain,  or  ought  to 
gain,  at  our  colleges  and  universities,  is  intellectual  disci 
pline,  or  the  power  to  use  their 'own  faculties  ;  a  knowledge 
of  how  to  employ  books  as  their  intellectual  tools  ;  the 
habit  of  written  or  oral  expression  ;  and  the  learning  that 
is  comprehended  in  the  education  given  at  the  particular 
institution.  These  my  brother  acquired  at  Harvard,  as 
abundantly  as  they  could  be  acquired  at  that  time.  His 
college  exercises,  in  every  department  of  the  curriculum, 
were  all  performed  with  that  sustained,  even,  and  easy 
excellence  for  which  he  was  distinguished  through  life.  I 
have  not  sought  to  ascertain  from  the  record  in  what  par 
ticular  study  he  was  foremost,  because  I  am  quite  sure  that 
in  all  branches  there  was  a  uniform  proficiency,  far  above 
mediocrity,  but  not  rising  to  brilliancy  of  scholarship,  or 
the  exhibition  of  other  powers  than  the  power  of  steady 


1825-29.]  COLLEGE   LIFE.  31 

industry  applied  by  a  mind  singularly  endowed  with,  the 
faculty  of  doing  well  whatever  was  to  be  done. 

Judging  by  what  I  afterwards  knew  of  his  attainments, 
I  should  say  that  in  college  he  acquired  but  a  moderate 
knowledge  of  Greek,  which  he  did  not  continue  to  read, 
excepting  in  the  New  Testament ;  and  that  he  was  pretty 
strong  in  Latin,  which  he  did  continue  to  read  through  life 
in  some  of  the  great  classic  authors.  But  his  scholarship 
in  the  ancient  languages  was  not,  at  any  period,  of  that 
kind  which  is  displayed  in  frequent  quotation,  apt  or  inapt ; 
nor  was  it  the  habit  of  his  mind  to  parade  whatever  learn 
ing  he  had.  His  mind  was  enriched  by  learning,  but  not 
overlaid  by  it ;  and  to  aim  to  appear  learned  was  as  foreign 
to  his  nature  as  any  other  form  of  pretence.  In  the  modern 
languages,  which  were  voluntary  studies  at  the  time  he  was 
at  Harvard,  he  learned  to  read  French,  German,  and  Span 
ish  quite  well,  though  he  never  spoke  either.1  In  Italian, 
he  went  through  a  course  which  terminated  in  Dante, 
whose  "  Divina  Commedia  "  was  taught  by  a  very  accom 
plished  native  of  Italy.2  . 

The  department  of  the  modern  languages  and  their  litera 
tures  was  then  under  the  general  charge  of  Mr.  Ticknor. 
It  was  the  department  in  which  there  was  the  greatest 
amount  of  activity  and  of  positive  instruction.  My  brother 

1  While  my  brother  was  in  college,  Francis  Lieber  and  Edward  Wiggles- 
worth  were  editing  the  "Encyclopaedia  Americana,"  in  which  a  part  of  the 
articles  were  translated  from  the  German  "  Conversations-Lexicon."      My 
brother  made  some  of  these  translations,  for  the  sake  of  the  money  that 
was  paid  for  them.     So  far  as  I  know,  this,  with  the  exception  of  what  he 
received  as  a  Bowdoin  prize,  was  the  only  money  that  he  earned  by  his  pen 
during  his  college  life. 

2  Pietro  Bachi,  Ph.  D.,  instructor  in  Italian  in  Harvard  University  for 
twenty  years.     He  was  born  in  Sicily,  in  1787.     He  was  implicated,  in  1815, 
in  Murat's  attempt  to  reascend  the  throne  of  Naples,  and  was  banished. 
After  remaining  in  England  for  ten  years,  he  came  to  this  country,  and 
obtained  an  appointment  at  Harvard.     He  was  a  most  accomplished  person 
in  many  ways.     He  died  in  Boston,  Aug.  22,  1853,  at  the  age  of  sixty-six. 
(See  Blake's  Biographical  Dictionary.) 


32  MEMOIR   OF   BENJAMIN   ROBBINS    CURTIS.       [1825-29. 

had  the  advantage  of  hearing  Mr.  Ticknor's  courses  of 
lectures  on  the  French  and  Spanish  literatures;  and  I  think 
that  a  very  ample  and  instructive  course  of  lectures  on 
Shaktpeare  was  also  delivered  by  that  gentleman  to  the 
same  class.1 

In  the  mathematics  and  such  of  the  exact  sciences  as 
were  then  taught  at  Harvard,  I  do  not  suppose  that  he 
made  any  considerable  acquisitions.  Indeed,  for  the  higher 
mathematics  he  had  very  little  taste,  In  the  moral  sci 
ences,  it  might  be  expected  that  he  would  obtain  all  that 
the  state  of  instruction  at  that  time  could  give  him.  In 
logic,  moral  philosophy,  and  political  economy,  the  text 
books  and  the  teachings  were  perhaps  up  to,  but  certainly 

1  I  can  myself  remember  nothing,  in  the  whole  of  the  instruction  at  Har 
vard,  from  which  I  derived  more  than  from  Mr.  Ticknor's  lectures  on 
French  literature.  It  was  a  most  thorough,  comprehensive,  and  methodical 
history  and  criticism  of  the  entire  body  of  French  literature,  from  the 
origin  of  the  language  down  to  the  year  1830,  arranged  with  all  the  accu 
racy  of  detail  for  which  he  was  noted,  and  interspersed  with  interesting 
biographical  accounts  of  the  authors.  No  one  who  heard  that  course  of 
lectures,  and  really  attended  to  them,  could  ever  afterwards  be  at  a  loss 
where  to  place  any  of  the  great  writers,  or  forget  their  productions  and  the 
merits  of  each  of  them,  or  be  ignorant  of  the  history  of  the  language,  or  of 
the  distinction  between  the  classic  and  the  romantic  drama,  or  the  charac 
teristics  of  French  prose  and  poetry.  I  do  not,  of  course,  presume  to  inti 
mate  that  Mr.  Ticknor  did  not,  in  his  great  work  on  Spanish  Literature, 
surpass  all  that  he  ever  did  in  the  belles-lettres.  I  have  the  same  vivid  im 
pressions  of  his  lectures  on  the  Spanish  as  of  those  on  the  French  litera 
ture  ;  but  having  taken  full  notes  of  both  courses  as  they  were  delivered 
at  Cambridge,  I  venture  to  express  the  belief  that  the  publication  of  the 
French  lectures,  from  his  manuscripts,  would  in  no  degree  diminish  his 
fame.  It  may  perhaps  be  thought  that,  as  a  great  deal  has  since  been  done 
in  the  same  field,  the  literary  world  would  not  gain  as  much  from  his 
French  lectures  as  it  has  gained  from  his  work  on  Spanish  Literature, 
and  that  as  the  author  himself  did  not  prepare  them  specially  for  the  press, 
it  is  not  worth  while  for  any  one  else  to  undertake  it.  But  there  must  be, 
and  I  am  confident  that  there  is,  a  great  deal  in  these  French  lectures  that 
would  be  highly  interesting  as  exhibitions,  not  only  of  his  peculiar  scholar 
ship,  but  of  his  characteristic  methods  of  criticism,  his  views  of  the  growth 
of  a  literature  and  of  its  influence  upon  and  its  subjection  to  the  national 
character.  Others  may  have  written  as  well  on  these  subjects,  or  better  ; 
but  would  the  world  therefore  be  careless  of  any  thing  that  came  from  the 
pen  of  George  Ticknor  ' 


1825-29.]  COLLEGE   LIFE.  33 

not  in  advance  of,  the  times.  In  history,  whatever  of 
importance  an  undergraduate  could  gain  was  gained  by  his 
own  voluntary  studies.  The  sum  of  my  estimate,  in  regard 
to  his  positive  acquirements  in  college,  is,  that  while,  as  his 
"  college  rank  "  shows,  he  neglected  no  part  of  the  curricu 
lum,  and  was  punctilious  and  exact  in  all  .his  prescribed 
duties,  he  did  about  as  much  for  himself  as  was  done  for 
him  by  the  institution.  But  of  course  he  could  not  have 
well  dispensed  with  a  college  education;  and,  indeed,  I 
ought  to  mention,  as  of  special  importance,  one  of  the 
advantages  that  were  afforded  at  Harvard  in  his  time. 
Whatever  power  of  correct  writing  he  or  any  man  obtained 
who  was  educated  there  while  Edward  T.  Channing  was 
Professor  of  Rhetoric,  he  must  have  largely  owed  to  that 
accomplished  critic  and  teacher.1 

1  Mr.  Channing  was  a  brother  of  the  celebrated  divine,  Dr.  William 
Ellery  Channing.  His  nicety  of  taste,  his  knowledge  of  the  capacities  of 
our  English  tongue,  and  his  large  acquaintance  with  English  literature, 
made  him  a  most  useful  Professor.  I  am  ignorant  of  the  mode  in  which 
rhetoric  is  now  taught  at  Harvard  or  our  other  colleges ;  but  I  can  con 
ceive  of  nothing  better  than  Mr.  Channing's  method,  and  of  nothing  more 
valuable  than  his  criticism.  It  was  his  habit  to  give  out  a  subject  every 
fortnight,  on  which  each  member  of  a  class  was  required  to  write  an  essay, 
called  in  the  college  parlance  a  "  theme."  These  he  read  carefully  in  his 
study,  correcting  them  with  his  pencil  by  a  peculiar  system  of  marks, 
which  were  well  understood  by  the  students.  The  papers  were  then  re 
turned  to  the  writers.  After  a  short  interval,  the  class  attended  him  in  his 
lecture-room,  and  each  student  in  his  turn  was  called  up  to  the  table  and 
seated  by  the  Professor's  side.  Speaking  in  a  clear  tone,  so  that  the  others 
might  profit  by  his  observations,  he  placed  the  point  of  his  pencil  under  the 
word  or  passage  that  he  meant  to  object  to,  and  then,  with  a  slight  suspicion 
of  a  sneer,  kindly  but  pointed,  he  in  a  few  words  gave  you  a  criticism  that 
went  through  you  like  a  rapier.  Whatever  other  faults  you  might  there 
after  commit,  you  were  not  likely  to  repeat  that  one  during  the  remainder 
of  your  life.  Mr.  Channing  was  not  fond  of  work,  but  he  performed  his 
stated  duties  with  great  fidelity,  and  he  sometimes  went  beyond  them.  He 
received  during  one  winter,  at  his  study,  on  one  evening  in  each  week,  eight 
or  ten  of  the  members  of  my  class,  —  of  whom  I  was  lucky  enough  to  be  one,  — 
and  read  with  us  choice  passages  of  the  English  poets,  from  Chaucer  to 
Wordsworth,  and  of  the  principal  prose-writers  from  Bishop  Latimer  to 
Burke.  I  have  known  no  man  who  had  a  more  extensive  knowledge  of  the 
whole  body  of  English  literature,  and  no  one  whose  methods  of  teaching 
VOL.  i.  3 


34  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.       [1825-29. 

I  have  now  to  quote  from  a  recent  letter,  written  to  me 
by  the  distinguished  poet  Dr.  Oliver  Wendell  Holmes, 
one  of  my  brother's  classmates,  in  answer  to  some  inquiries 
which  I  had  addressed  to  him  :  — 

"  The  only  college  society  in  which  I  remember  meeting 
your  brother  was  a  small  and  temporary  association,  called  the 
dtaytjiuZoroi.1  I  do  not  remember  any  of  the  members  except 
your  brother  and  William  Henry  Channing.  I  should  perhaps 
not  remember  the  society  at  all,  but  for  the  fact  of  .'  Ben  CurtisV 
having  taken  part  in  a  discussion,  and  shown  in  that  first  effort  such 
extraordinary  clearness  of  statement  that  we  all  saw  at  once  that 
he  must  be  distinguished  in  the  legal  profession  if  he  adopted  it. 
His  was  the  first  horoscope  that  we  cast,  and  from  that  hour  his 
record  was  but  the  fulfilment  of  our  unquestioning  prophecy. 

"  I  was  not  intimate  with  him  in  college,  nor  do  I  think  that  he 
was  intimate  with  many,  if  with  any,  members  of  the  class.  Keeping 
himself  rather  apart  from  the  multitude,  he  never  gained  that  cheap 
popularity  which  is  often  awarded  to  men  for  their  social  habits, 
rather  than  their  deserts.  Consequently,  although  he  was  one  of 
the  candidates  for  the  place  of  Class  Orator,  it  was  awarded  to 

good  English  writing  were  more  successful.  As  a  reader,  he  was  positively 
charming. 

Since  the  foregoing  part  of  this  note  was  written,  I  have  received  from 
Mr.  George  William  Phillips  the  following  account  of  the  strong  testimony 
once  borne  by  Judge  Curtis  to  the  merits  of  Mr.  Channing.  "  At  one  of 
the  annual  meetings  of  '  the  Class  of  1829,'  Curtis  remarked  that  for  the 
freedom  from  the  florid  style  so  common  among  boys,  and  which  he  did  not 
suppose  had  ever  prevailed  at  Cambridge  as  much  as  at  other  colleges,  we 
were  mainly  indebted  to  Channing's  influence.  '  I  can  cite  a  strong  case/ 
he  said,  '  here  in  our  own  circle.  Bigelow  is  not  here  to-night,  and  so  I  may 
speak  of  him  as  I  should  not  if  he  were  here.  You  know  much  of  my  life 
has  been  so  spent  as  to  give  me  a  large  acquaintance  with  the  judicial  style  ; 
and  I  here  express  the  opinion,  which  is  not  a  new  one,  that  for  simplicity, 
clearness,  and  purity  of  style,  so  well  suited  to  his  purpose,  I  know  of  no 
living  judge  who  is  the  superior  of  our  classmate  Bigelow.'"  The  gentle 
man  here  referred  to  was  Chief  Justice  of  Massachusetts  from  1860  to  1867. 
He  died  in  April.  1878. 

1  The  term  may  be  rendered  "  notabilities,"  or  notables,  "  famous  per 
sons."  College  students  are  never  too  modest  in  adopting  the  names  of  such 
associations.  My  brother  was  a  member  of  the  Hasty  Pudding  Club  ;  an 
honorary  member  of  the  Porcellian  Club ;  a  member  of  the  Harvard  Institute, 
and  of  some  other  college  societies.  At  the  end  of  his  Junior  year,  he  was 
entitled  by  his  rank  to  be,  and  was,  elected  a  member  of  the  Phi  Beta  Kappa 
Society. 


1825-29.]  COLLEGE   LIFE.  35 

another.1  We  do  not  often  think  of  your  brother  as  a  student  of 
'belles-lettres,  or  as  particularly  given  to  the  reading  of  poetry ;  yet 
I  remember  very  vividly  that,  on  going  into  his  room  one  day,  he 
burst  into  what  was  almost  a  rhapsody  of  delight  over  some  of  the 
poems  of  Coleridge,  a  volume  of  which  he  had  before  him.  Two 
passages  I  remember  he  recited,  or  read  from  the  book,  with  glow 
ing  enthusiasm.  One  was,  — 

'  All  thoughts,  all  passions,  all  delights,'  £c.2 

The  other  I  cannot  give  textually,  but  it  is  the  one  in  which  the 
question  is  asked,  — 

'  What  if  all  nature  is  an  ^Eolian  harp  ?  '  — 

the  same  thought,  by  the  way,  which  you  may  find  in  one  of 
Burns's  poems  or  letters,  and  perhaps  in  older  writers."  3 

1  The  appointment  of  "  Class  Orator  "  was  determined  by  a  vote  of  the 
class.     It  fell  upon  George  H.  Devereux,  of  Salem. 

2  It  is  the  first  line  of  the  first  stanza  in  Coleridge's  poem  entitled  "  Love." 

3  "  Are  we  a  piece  of  machinery,  which,  like  the  JEolian  harp,  passive, 
takes  the  impression  of  the  passing  accident  1  "  (Burns's  Letter  to  Mrs.  Dun- 
lop,  New-Year's-Day,  1789.) 

Dr.  Holmes,  in  a  postscript  to  his  letter  to  me,  adds :  "  I  cannot  forget 
that  you  were  the  first  reviewer  who  ever  spoke  a  good  word  for  me.  You 
may  have  forgotten  that  you  wrote  a  notice  of  a  Phi  Beta  Kappa  poem  which  I 
delivered  in  1836.  I  wish  I  could  repay  you  better  than  by  these  scanty 
pages."  I  had  certainly  forgotten  that  I  was  entitled  to  the  distinguished 
honor  which  Dr.  Holmes  assigns  to  me  ;  nor  can  I  now  recall  what  led  me 
to  try  my  "prentice  hand"  in  a  notice  of  his  poem.  But  the  poem  itself  I 
remember  with  as  much  distinctness  as  if  I  had  heard  it  within  a  week. 
The  beautiful  lines  relating  to  the  two  churches  in  Cambridge  have  run 
in  my  head  ever  since,  and  I  never  revisit  that  classic  ground  without  recall 
ing  them.  I  quote  entirely  from  memory  :  — 

"  Like  Sentinel  and  Nun  they  keep 

Their  vigil  on  the  green  ; 
One  seems  to  guard,  and  one  to  weep, 
The  dead  that  lie  between." 

Dr.  Holmes  had  then  just  returned  from  Europe.  Extremely  youthful  in 
his  appearance,  bubbling  over  with  the  mingled  humor  and  pathos  that 
have  always  marked  his  poetry,  and  sparkling  with  coruscations  of  his 
peculiar  genius,  his  Phi  Beta  Kappa  poem  of  1830,  delivered  with  a  clear,  ring 
ing  enunciation,  which  imparted  to  the  hearers  his  own  enjoyment  of  his 
thoughts  and  expressions,  delighted  a  cultivated  audience  to  a  very  uncom 
mon  degree.  I  suppose  my  little  "  notice  "  could  have  been  only  an  attempt 
to  express  the  general  admiration.  But  in  these  memories  of  two  and  forty 
years,  what  one  has  done  one's  self  may  fade,  while  what  was  done  by 
others  is  more  enduring. 


36  MEMOIR  OF  BENJAMIN  BOBBINS   CUKTIS.      [1825-29 

There  is  one  slight  qualification  to  be  made  of  Dr. 
Holmes's  remark  concerning  my  brother's  intimacies.  In 
college,  as  in  later  life,  he  chose  his  friends  very  much 
according  to  the  principle  of  the  advice  given  by  old 
Polonius  to  his  son  ;  and  perhaps  this  is  what  Dr.  Holmes 
meant  to  imply.  It  is  certain  that  in  college  he  had  inti 
mates.  One  of  his  closest  friends  was  Mr.  George  William 
Phillips,  who  has  been  for  six  and  forty  years  a  much  re 
spected  member  of  the  Boston  bar.  They  made  together 
a  journey  to  Niagara,  on  horseback,  in  the  long  summer 
vacation  of  their  Senior  year.  Another  of  his  college 
friends  was  Mr.  Edward  D.  Sohier,  also  still  an  active  and 
prominent  member  of  the  same  bar.  They  were  drawn 
together  by  their  common  tastes  for  field-sports;  and  through 
many  a  "  bushy  dell  and  bosky  bourne  "  they  followed,  with 
dog  and  gun,  where  the  wary  woodcock,  swiftest  of  birds, 
rushed  away  on  the  wing,  and  was  often  dropped  by  their 
quicker  shot.  Still  it  is  true,  in  a  general  way,  that  my 
brother's  friendships  were  not  many.  "  He  had,"  says  Dr. 
Bobbins,  "  even  at  that  early  age,  the  air  of  stateliness  and 
reserve  which  has  often  given  the  impression  of  a  cold  and 
haughty  nature.  But  those  who  knew  him  best  ever  found, 
beneath,  a  warm  and  generous  heart,  habitually  kind  in  its 
judgments  and  considerate  of  the  feelings  of  others."  l  In 
regard  to  the  "  stateliness  and  reserve,"  the  same  mistake  was 
made  concerning  Mr.  Webster,  as  it  has  been  in  the  cases 
of  many  other  men  of  superior  intellect,  whose  manners 
have  not  been  what  is  often  called  "  popular."  I  am  not 
aware  that,  either  in  his  youth  or  at  any  other  period  of 
his  life,  my  brother  was  ever  regarded  as  a  haughty  man, 

1  Memoir  by  Dr.  Robbins,  read  before  the  Massachusetts  Historical 
Society,  and  lately  published.  As  an  instance  of  his  consideration 
for  the  feelings  of  others,  I  recollect  one  proud  and  sensitive  youth  making 
a  complaint,  in  a  formal  note,  that  he  did  not  have  so  much  of  my  brother's 
society  as  he  thought  himself  entitled  to.  He  was  answered  gently  and 
kindly,  and  always  remained  strongly  attached  to  my  brother.  The  gentle 
man  has  been  deceased  for  many  years. 


1825-29.]  COLLEGE   LIFE.  37 

even  by  those  who  did  not  know  him  well.  He  certainly 
did  have  at  an  early  age  an  air  of  sedateness,  which  was 
the  natural  expression  of  his  maturity  of  character,  and  his 
balanced  and  thoughtful  nature.  Dr.  Robbins  observes  that 
he  had  "  nothing  of  what  is  termed  self-consciousness  ;  " 
and  his  testimony,  which  is  of  itself  valuable  as  that  of 
one  who  had  the  earliest  means  of  observation,  and  who 
knew  the  man  of  whom  he  speaks,  through  all  the  remain 
der  of  his  life,  would  doubtless  be  confirmed  by  the  gen 
eral  verdict. 

But  I  must  return  to  the  journey  to  Niagara,  in  order  to 
quote  from  a  recent  letter  addressed  to  me  by  Mr.  Phillips, 
concerning  that  and  an  earlier  trip  of  the  same  sort. 

BOSTON,  Sept.  27,  1878. 

MY  DEAR  CURTIS, —  .  .  .  There  were  two  of  these  horseback 
journeys.  I  shall  never  forget  them.  I  have  known  nothing  in 
that  line  like  them.  The  first  was  in  our  Junior  year,  the  summer 
of  1828,  half  a  century  ago.  Ben,1  Weston  (we  always  called  him 
Harry  Weston2),  and  I  made  the  party.  We  went  to  Portland,  up 
the  Saco  Valley,  to  the  White  Hills ;  then  over  to  the  head-waters 
of  the  Connecticut,  down  the  river  road  to  Springfield,  and  thence 
home.  We  were  gone  three  weeks.  Each  had  $50,  and  each 
brought  home  some  balance.  The  next  year,  just  preceding  Com 
mencement,  Ben  and  I  rode  to  Niagara  through  Northampton, 
Albany,  and  Central  New  York,  and  back  by  much  the  same  route. 
...  It  was  on  these  journeys  especially  that  Ben  impressed  me 
with  his  singular  maturity  of  character.  He  managed  and  decided 
like  a  father  of  forty. 

1  At  home,  and  among  his  friends  and  intimates,  until  he  became  a  judge, 
my  brother  was  always  called  by  this  diminutive.    In  the  Life  of  Air.  Ticknor, 
it  is  related  how  he  gravely  counselled,  after  his  nephew  had  been  elevated 
to  the  bench,  that  in  the  family  circle  this  habit  should  be  dropped,  and 
that  he  should  be  called  "  the  Judge."     Every  one  conformed  to  this  except 
ing  my  mother.     With  her,  all  the  honors  and  dignities  in  the  world  could 
not  displace  the  endeared  name  by  which  she  had  always  called  and  spoken 
of  her  eldest  child.     And  as  these  surviving  companions  of  his  youth,  now 
verging  on  the  threescore  and  ten,  go  back  in  their  memories  to  his  and  their 
early  days,  how  else  should  they  speak  of  him  but  by  the  fond,  affectionate 
appellation  by  which  they  first  knew  and  loved  him  ? 

2  His  name  was  Ezra.     He  was  of  a  family  in  the  Old  Colony  of  Plymouth. 


38  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.      [1825-29. 

These  journeys  were  glorious.  We  sometimes  spoke  of  them  in 
after  years,  and  it  was  always  agreed  that  there  had  been  nothing 
like  them.  We  had  our  horses  in  training  a  fortnight  before  we 
started ;  carried  nothing  but  the  round  military  valise  at  the  back 
of  the  saddle  ;  and  all  dressed  alike,  in  short  jackets  and  pantaloons 
of  brown  linen. 

I  have  been  living  for  more  than  twenty-five  years  on  a  small 
farm  to  the  north  of  Boston,  which  happens  to  bound,  on  one  entire 
side,  on  the  old  Xewburyport  turnpike,  —  the  very  road  by  which 
we  three  boys  started  on  our  first  day's  ride  to  the  White  Moun 
tains.  I  ride  now  a  good  deal,  and  twice  out  of  three  times  I  turn 
my  horse's  head  in  that  direction.  It  is  still,  as  then,  a  wild, 
wooded  road,  —  scarcely  any  houses  ;  and  it  is  easy  to  imagine  my 
companions  by  my  side.  Ben  always  rode  on  the  left,  I  in  the 
middle,  and  Weston  on  the  right.  The  companionship  is  at  times 
very  real.  There  are  no  tolls  or  ferries  there ;  but  if  there  were, 
it  would  be  straining  nothing  to  say,  — 

"  Take,  0  boatman,  thrice  thy  fee, 
Take  !  I  give  it  willingly  ; 
For,  invisible  to  thee, 
Spirits  twain  have  crossed  with  me." 

You  must  never  refer  to  these  rides,  or  say  "  horse,"  if  you  can't 
bear  a  good  deal  of  this.  .  .  . 

Very  truly  yours, 

GEO.  W.  PHILLIPS. 
GEO.  T.  CURTIS,  Esq.,  New  York. 

In  his  Junior  year,  he  wrote  a  dissertation  for  one  of  the 
Bowdoin  prizes,  and  received  for  it  a  first  prize  of  fifty  dol 
lars.  The  subject,  prescribed  by  the  college,  was  the 
question,  "  How  far  may  political  ignorance  in  the  people 
be  relied  on  for  the  security  of  absolute  government  in 
Europe  ?  "  The  editor  of  this  work  has  selected  this  essay 
for  the  first  place  among  his  father's  productions  that  are 
to  be  included  in  this  collection.  It  will  give  the  reader 
the  means  of  judging  how  far  he  had  attained,  at  the  age  of 
nineteen,  the  style  of  his  maturer  years.  It  was  written  in 
1828,  four  years  after  Mr.  Webster's  celebrated  speech  in 
Congress  on  the  Greek  Revolution,  which  was  delivered 


1825-29.]  COLLEGE   LIFE.  39 

Jan.  19,  1824.  I  suggest  these  dates  because  it  is  quite 
probable  that  the  Professor  of  Rhetoric,  in  assigning  this 
question  to  the  competitors  for  the  prize,  was  led  to  choose 
the  topic  itself  by  some  of  the  passages  in  that  speech. 
But  a  comparison  between  a  college  essay  written  by  a 
youth  of  nineteen,  and  a  careful  and  finished  speech  by  a 
distinguished  statesman  of  forty-two,  is  of  course  not  to  be 
made  for  any  other  purpose  than  to  ascertain  if  the  young 
collegian  borrowed  any  of  his  ideas  or  his  expressions.  So 
little  does  this  seem  to  have  been  the  case,  that  the  treat 
ment  of  the  subject  would  hardly  lead  one  to  suppose  that 
the  writer  of  the  essay  had  read  the  speech,  although  he 
doubtless  had.1  Mr.  Webster's  striking  and  eloquent  de 
scription  of  the  power  of  public  opinion  will  recur  to  the 
reader.  But  the  remark  of  the  young  essayist,  that  that 
power  can  be  exercised  only  by  an  enlightened  and  judicious 
people,  —  that  public  opinion  cannot  be  formidable  without 
freedom  of  thought  and  cultivation  of  mind,  —  was  a  just 
discrimination,  which  certainly  was  not  borrowed,  however 
obviously  true  it  may  be. 

The  precise  rank  in  which  my  brother  graduated,  as 
measured  by  the  rules  then  prevalent  and  by  the  public 
performances  assigned  at  the  graduating  "  Commencement," 
was  that  of  second  scholar  of  his  class.2  His  "part"  at  the 
Commencement  (August,  1829)  was  what  was  academically 
denominated  an  "  Oration."  The  subject  was,  u  The  Char 
acter  of  Lord  Bacon." 

I  am  not  sure  whether  the  subject  was  assigned  to  him 
by  the  Faculty,  or  was  chosen  by  himself  ;  but  my  impres 
sion  is  that  the  two  graduates  who  received  the  highest  of 
the  Commencement  honors  were  at  liberty  to  choose  their 
subjects.  If  this  one  was  assigned  by  the  college  authority, 

1  The  famous  passage  in  Mr.  Webster'-s  speech,  "  Sir,  this  reasoning  mis 
takes  the  age,"  was  then  declaimed  in  half  the  colleges  and  high-schools 
throughout  the  country. 

2  The  first  rank  was  taken  by  Mr.  Charles  S.  Storrow,  who  became  an 
eminent  civil  engineer. 


40  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.       [1825-29. 

the  professor  who  had  the  direction  of  the  matter  made  a 
happy  adaptation  of  the  topic  to  the  reading  and  tastes  of 
the  young  man  who  was  to  treat  it. 

I  can  bear  testimony  that  Bacon's  "  Advancement  of 
Learning,"  his  "  Essays,"  and  some  of  his  other  works,  were 
constantly  on  my  brother's  table  during  his  Senior  year. 
But  how  he  handled  this  subject  cannot  be  known.  In  con 
sequence  of  an  illness  which  followed  the  journey  to  Ni 
agara  already  spoken  of,  the  oration  was  not  delivered  at 
the  Commencement.  It  was,  therefore,  not  placed  in  the 
college  archives,  and  no  copy  of  it  has  been  found.1 

After  he  had  graduated,  he  received  an  appointment  to 
the  office  of  Proctor  in  the  University.2  This  gave  him  a 
right  to  reside  in  one  of  the  college  halls,  rent  free.  But 
the  duties  of  the  office  were  not  very  onerous,  at  least  in 
quiet  times,  and  it  involved  no  duty  of  giving  instruction. 
In  the  month  of  September  in  that  year  (1829),  he  entered 
the  Law  School  of  the  University. 

1  I  am  under  the  impression  that  my  mother  once  had  it,  and  that  I  at 
one  time  read  it.     But  I  cannot  trust  my  memory  sufficiently  to  describe  it. 

2  Soon  after  he  became  a  Proctor,  I  (being  a  Sophomore)  met  Mr.  Quincy, 
the  President,  one  day,  in  the  college  grounds.     lie  had  not  been  President 
long,  and  was  probably  not  familiar  with  my  brother's  person.     He  began 
abruptly  to  speak  to  me  about  some  matter  which  apparently  involved 
"  government  secrets."     As  soon  as  I  perceived  his  mistake,  I  undeceived 
him.     He  looked  at  me  shrewdly  for  an  instant,  and  then  said,  —  "All!  I 
see,  sir  ;  there  is  some  difference,  after  all,  between  Alexander  the  Great  and 
Alexander  the  Coppersmith."     The  President  of  course  had  the  laugh  on  his 
side  :  an  undergraduate  could  not  return  his  joke  ;  but  I,  in  my  sophomorical 
dignity,  thought  it  an  odd  way  of  offering  an  apology,  when  I  had  been  so 
prompt  in  making  him  aware  of  his  mistake. 


1829.]  HARVARD  LAW   SCHOOL.  41 


CHAPTER  III. 

Enters  the  Law  School  at  Cambridge.  —  Steady  Progress.  —  Quits  the 
School  for  a  Country  Residence.  — Finishes  his  Studies  at  Northfield.  — 
Admitted  to  the  Bar.  —  Marriage.  —  Country  Practice.  — Invitation  to 
remove  to  Boston.  —  Acquisitions  and  Reputation.  — Character  and  Pro 
fessional  Standing  of  Mr.  Charles  Pelham  Curtis.  —  Letters  to  G.  W. 
Phillips  and  Mr.  Ticknor. 

IT  would  be  quite  an  unnecessary  refinement  to  speculate 
about  the  causes  or  reasons  that  made  my  brother  choose 
the  law  as  his  profession.  He  was  not  led  to  it  by  any  acci 
dent,  whether  of  association  or  employment.  He  was  not 
apprenticed  in  his  youth  as  a  lawyer's  clerk  or  office-boy, 
and  he  had  no  relative  or  acquaintance  whose  example  or 
influence  might  have  affected  him.1  Nor  was  he  advised  by 
any  one  to  choose  this  profession.  Nature  made  him  for  a 
lawyer,  —  and  a  great  one  ;  and  when,  as  we  have  seen, 
some  of  his  college  classmates  cast  his  "horoscope,"  the  ele 
ments  of  their  calculation  were  all  patent  to  their  percep 
tions  of  his  natural  gifts.  In  resorting  to  the  study  of  the 
law,  he  simply  followed  what  was  as  much  a  dictate  of  his 
moral  and  intellectual,  as  the  appetite  for  food  was  a  dictate 
of  his  physical  constitution.  I  do  not  think  that  there  was 
ever  any  question  in  his  mind  about  a  profession  from  the 
time  when  he  was  eighteen  years  old.  Some  of  his  volun 
tary  studies,  during  his  last  two  years  in  college,  show  what 
he  expected  to  become.  He  devoted  much  time  during 

1  In  Lord  Campbell's  "Lives  of  the  Chancellors,"  we  read  that  the  great 
Lord  Somers  was  clerk  to  his  father,  who  was  a  country  solicitor,  and  that 
Lord  Hardwicke  was  an  articled  clerk  to  Mr.  Salkeld,  a  London  attorney. 


42  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1829 

those  years  to  English  history,  reading  systematically  Hume, 
Lingard,  and  Hallam ;  thus  making  the  best  preparation 
for  Blackstone,  Coke's  u  Institutes,"  and  the  Reports. 

It  has  been  finely  said  that  "  Justice  is  the  great  interest 
of  man  on  earth  ;  "  l  and  if  there  ever  was  one  who,  by  an 
instinctive  propensity  to  that  noble  science  which  regulates 
the  social  rights  of  men,  was  qualified  to  use  to  the  utmost 
advantage  every  available  means  for  its  study,  it  was  he 
who  is  the  subject  of  this  Memoir. 

In  the  same  autumn  in  which  he  graduated  from  the 
academic  department  of  Harvard,  the  Law  School  of  that 
University  became  what  it  had  never  been  before,  —  a  living 
and  working  institution.  Judge  Story  had  come  there  with 
his  affluence  of  learning,  his  power  of  satisfying  young  men 
who  had  a  real  thirst  for  knowledge,  and  his  magnetic  ac 
tivity.  His  inaugural  discourse  as  Dane  Professor  of  Law  — 
delivered  Aug.  25,  1829 — gave  a  new  and  stimulating  ex 
position  of  the  objects  and  methods  for  and  by  which  the 
study  of  the  law  should  be  pursued. 

There,  too,  had  come,  as  Royall  Professor  of  Law,  John 
Hooker  Ashmun,  of  Northampton, — then,  perhaps,  the  first 
lawyer  of  his  age  in  Massachusetts;  at  all  events,  one  who 
was  a  thorough  master  of  the  common  law  and  its  system 
of  pleading,  and  who  was  as  winning  in  his  intercourse  with 
young  men  as  he  was  capable  of  instructing  them  in  his 
particular  department.  Judge  Story  brought  with  him  his 
ample  library,  and  gave  the  use  of  it  to  the  students. 
There  had  not  been  such  an  opportunity  for  legal  education 
in  America.  The  first  class  that  availed  themselves  of  it 
was  composed  of  graduates  of  other  colleges,  as  well  as  of 
Harvard,  and  from  various  States  of  the  Union  ;  some  from 
States  as  far  as  Virginia  and  South  Carolina. 

I  am  not  disposed  to  say  that  my  brother  was  then  recog 
nized  as  the  foremost  man  of  this  eager  band.  But  among 

1  Daniel  Webster,  Remarks  at  a  Meeting  of  the  Suffolk  Bar,  on  Occa 
sion  of  the  Decease  of  Mr.  Justice  Story.  Works,  vol.  ii.  p.  300. 


1829.]  HARVARD   LAW   SCHOOL.  43 

the  studious  young  men  of  talent  who  first  gathered  about 
Judge  Story  and  his  associate  Professor  in  the  Cambridge 
Law  School,  Curtis  was  regarded  as  one  of  whose  future  the 
most  confident  hopes  might  be  entertained,  because  he  had 
given,  and  was  constantly  giving,  proofs  of  his  peculiar 
adaptation  to  the  profession  of  the  law.  He  entered  upon 
its  study  with  zeal,  rapidly  acquiring  what  is  so  essential  to 
a  beginner, —  a  knowledge  of  the  books  of  the  law,  and  of 
how  to  use  them.  His  Common-place  Book,  kept  at  this 
time  and  long  afterwards  continued,  shows  with  what  dili 
gence  he  read,  and  with  what  system  he  digested  his  read 
ing.1  Its  titles  and  references  exhibit  a  remarkable  sagacity 
in  selecting  and  preserving  the  learning  that  would  be  use 
ful  in  practice.  Some  men  have  read  law  by  going  over  a 
great  field  of  books,  and  acquiring  a  habit  of  heaping  up 
citations,  without  seeming  to  have  cultivated  the  faculty  of 
judging  nicely  of  their  bearing  upon  the  point  or  question 
with  which  they  may  have  to  deal.  The  power  of  being 
learned  with  discrimination  —  of  making  a  pertinent  use  of 
what  one  knows  —  is  very  necessary  to  a  lawyer  who  ex 
pects  to  instruct  and  influence  a  court.  This  power  my 
brother  possessed  in  an  eminent  degree  from  his  earliest 
professional  years.  He  was  always,  and  justly,  considered 
as  a  learned  lawyer :  no  one  ever  regarded  him  as  a 
pedant. 

Judge  Story  introduced  into  the  Cambridge  Law  School 
the  custom  —  since  followed  in  most  of  the  law  schools  in 
the  country  —  of  holding  "  moot  courts."  A  case  was  given 
out;  the  parts  of  junior  and  senior  counsel  were  regularly 
assigned  to  two  students  on  each  side  from  among  those 
who  chose  to  enjoy  the  privilege  ;  and  the  case  was  pub 
licly  argued  before  one  of  the  professors  sitting  as  a  judge, 
by  whom  the  decision  was  pronounced  in  an  oral  opinion  at 
the  close  of  the  discussion.  My  brother  always  availed 

1  The  Common-place  Book  lies  before  me,  and  I  can  distinguish  the  read 
ing  of  his  law-school  days. 


44  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1830. 

himself  of  every  opportunity  for  this  kind  of  exercise ;  and 
his  immediate  success  as  an  advocate,  from  the  first  moment 
when  he  began  to  appear  in  the  real  tribunals  of  his  native 
State,  proves  how  well  he  had  profited  by  those  fictitious 
trials.1 

I  am  not  aware  that  any  production  of  his  while  he  was 
in  the  Law  School  has  been  preserved,  excepting  another 
Bowdoin  prize  dissertation  which  he  wrote  in  1830,  when 
he  had  been  graduated  just  one  year.  A  copy  of  it  has  been 
obtained,  as  the  previous  one  has,  from  the  college  archives, 
for  publication  in  this  work.  The  subject  was,  "  The  pres 
ent  character  of  the  inhabitants  of  New  England,  as  result 
ing  from  the  civil,  literary,  and  religious  institutions  of  the 
first  settlers."  It  is  not  surprising  that  this  dissertation 
should  have  taken  a  first  prize.  In  historical  research, 
accuracy,  and  grasp  of  the  subject,  it  would  have  done  honor 
to  any  writer  of  twice  his  years.  It  shows  that  his  style 
was  even  then  fully  formed,  although  there  is  here  and 
there  an  expression  that  might  be  improved.  It  is  printed 
in  the  present  work  just  as  it  has  been  received  from  the 
college  files. 

The  following  letter  to  his  friend  Phillips,  which  shows 
how  he  passed  the  summer  vacation  of  the  year  1830,  is  the 
only  part  of  his  correspondence  during  his  connection  with 
the  Law  School  that  has  come  within  my  reach.  What  were 
the  "attractions  "  of  Hanover  will  be  presently  explained. 

1  The  "  moot  courts  "  were  almost  always  held  as  sittings  in  bane.  But 
I  remember  that,  on  one  occasion,  Judge  Story  organized  and  presided  at  a 
nisi  prius  trial.  The  case  was  an  action  upon  a  policy  of  marine  insurance, 
and  it  turned  upon  the  question  of  a  total  loss.  The  jury  was  composed  of 
twelve  students,  drawn  from  the  Divinity  School.  I  forget  how  the  evidence 
showing  the  loss  was  introduced,  but  I  presume  it  must  have  been  presented 
in  depositions,  borrowed  probably  from  some  actual  case.  My  distinguished 
and  beloved  friend,  the  late  Hon.  George  S.  Hillard,  is  the  only  one  of  the 
"  counsel  "  whom  I  remember  as  taking  part  in  the  trial.  He  "  led  "  on  one 
side  or  the  other.  He  closed  an  impassioned  peroration  by  exclaiming, 
"  Gentlemen  of  the  jury,  the  verdict  is  mine  !  I  will  have  it !  "  Yet  I  am 
quite  unable  to  say  how  it  went.  But  I  know  that  a  great  deal  was  taught 
in  those  "  moots,"  in  which  all  the  forms  were  punctiliously  observed. 


1830.]  VISIT   AT   HANOVER.  45 


To  MR.   G.  W.  PHILLIPS,  BOSTON. 

HANOVER,  Aug.  11,  1830. 

MY  DEAR  FRIEND,  —  Your  pleasant  letter,  which  I  received 
two  days  since,  found  me  in  Hanover,  where  I  have  been  quietly 
located  for  the  last  four  weeks,  and  where  I  expect  to  'remain  one 
week  longer,  until  after  the  Commencement  here,  when  I  shall  leave 
for  Burlington,  Vt.,  where  I  shall  stay  a  week  or  so,  and  return  to 
Cambridge  on  Saturday  after  our  Commencement.  Now  don't  ask 
me  what  I  am  staying  in  this  dull  place  for  so  long,  and  how  I 
contrive  to  pass  away  the  time,  and  don't  look  wise  when  I  see 
you  and  say  that,  ahem !  doubtless  there  are  attractions  which  may 
make  the  most  stupid  places  very  pleasant ;  for  indeed  this  is  an  ex 
cellent  place  to  study,  and  a  vast  deal  of  law  have  I  read  since  I 
have  been  here ;  and  positively  that  is  the  only  reason  why  I  have 
stayed  so  long.  Then,  as  you  say,  what  fine  rides  there  are  on  the 
river,  and  in  the  back  country,  and  what  a  fine  moon  we  have  had ! 
and  indeed,  altogether,  it  has  been  a  very  pleasant  four  weeks.  I 
shall  not  be  present  at  Commencement  or  the  class  supper.  I  be 
lieve  you  are  on  the  committee.  The  best  wish  I  can  entertain  for 
you  in  that  respect  is,  that  you  may  not  be  compelled  to  pay  for 
more  of  your  supper  than  you  can  eat. 

I  am  sorry  to  learn  that  it  is  probable  that  Davis,  of  Worcester, 
will  be  placed  on  the  bench :  I  hoped  it  might  be  one  of  the  Boston 
Bar.  The  appointment  of  Mr.  Hubbard  or  Mr.  Shaw  would  leave 
a  fine  practice  to  be  distributed  among  the  remaining  lawyers ;  and 
would  be  a  good  example  to  teach  young  men  that,  though  the  num 
ber  of  lawyers  does  increase,  still  from  time  to  time  an  old  gray- 
head  makes  way,  and  leaves  room  for  others. 

I  am  greatly  interested  in  the  Salem  trials.1  We  get  little  news 
of  them,  or  of  any  thing  else  going  on  in  your  quarter.  Sohier  is 
kind  enough  to  forward  me  a  paper,  so  that  I  am  not  more  than  a 
week  behind  the  rest  of  the  world  in  news. 

We  have  had  terrible  freshets  here  and  in  Vermont,  —  whole  vil 
lages  swept  away,  and  numbers  of  lives  lost,  crops  destroyed,  and  a 
vast  deal  of  damage  done.  All  the  north-west  part  of  the  State  of 
Vermont  has  been  under  water.  I  am  not  able  to  go  from  here  to 
Burlington  directly,  but  am  obliged  to  cross  the  State  to  the  foot 
of  Lake  Champlain,  and  go  up  the  lake  in  the  steamboat. 

1  The  trials  of  Knapp  and  others  for  the  murder  of  Capt.  Joseph  White. 


46  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1831. 

Your  generous  apology  for  conduct  which,  though  I  had  not  for 
gotten,  I  had  certainly  and  truly  forgiven,  was  unnecessary  ;  but  it 
has  confirmed  my  high  opinion  of  your  good  sense  and  candor. 
We  both  of  us  behaved  less  like  men  than  we  might  have  done,  and 
if  my  part  in  the  affair  renders  it  allowable  for  me  to  make  any  re 
quest  concerning  it,  it  is  that  you  will  not  t"ouble  yourself  any  more 
about  it,  but  will  forgive  and  forget  it  all,  as  I  have  done. 

Since  I  last  saw  you,  I  went  to  Nahant,  and  spent  a  day  in  com 
pany  with .  He  has  all  his  old  peculiarities,  though  they  are 

somewhat  diminished  in  degree  ;  and,  on  the  whole,  I  think  he  has 
greatly  improved,  as  much  so  as  any  of  our  class  whom  I  have 
seen.  By  the  way,  —  speaking  of  classmates,  —  I  saw  Conant  in 
Greenfield,  Mass.  He  had  been  to  the  White  Mountains,  had 
come  down  to  Bath,  purchased  a  boat,  and  floated  down  the  river 
as  far  as  Greenfield,  where  I  saw  him.  He  had  a  companion 
and  intended  to  go  as  far  down  as  Springfield,  and  then  walk  to 
Worcester,  where  he  is  studying  law. 

Yours  truly,  B.  R.  CURTIS. 

Mr.  Curtis  left  the  Law  School  in  the  early  part  of  the 
rear  1831,  some  eighteen  months  before  the  completion  of 
the  regular  course.  How  he  came  to  do  so  requires  expla 
nation. 

Between  forty  and  fifty  years  ago,  there  resided  and 
practised  in  the  town  of  Nortlifield,  in  Franklin  County, 
Massachusetts,  an  old-fashioned  lawyer,  —  John  Nevers, 
Esquire.  He  was  universally  called  General  Nevers,  be 
cause  he  held,  or  had  held,  a  commission  as  Major  or  Briga 
dier-General  in  the  militia.  When  I  first  knew  him,  which 
was  in  1833,  he  was  a  quaint,  tall,  and  spare  man,  with 
silvery  hair,  a  parchment  complexion,  manners  that  were 
both  rustic  and  formal,  a  dry  humor,  and  an  expression 
about  his  eyes  and  mouth  that  indicated  shrewdness  and 
a  habit  of  suspicion.  He  was,  however,  a  man  of  strict  in 
tegrity,  and  of  great  firmness  and  resolution  ;  qualities  that 
made  him  respected  by  his  neighbors,  and  up  and  down  the 
valley  of  the  Connecticut  River  as  far  as  he  was  known. 
As  a  lawyer,  he  was  not  distinguished.  He  knew  some- 


1831.]  GENERAL  NEVERS.  47 

thing  of  the  statute  law  of  Massachusetts  and  a  little  of 
what  was  contained  in  the  earlier  volumes  of  the  Massachu 
setts  Reports.  But,  altogether,  he  was  not  a  member  of  the 
profession  with  whom  such  a  young  man  as  Curtis  would 
have  been  likely  to  place  himself  as  a  pupil  under  ordinary 
circumstances,  in  preference  to  remaining  in  the  society  of 
Judge  Story  and  Mr.  Ashmun,  and  the  students  who  sur 
rounded  them.  He  did  a  considerable  business  as  a  col 
lecting  lawyer,  and  made  a  good  many  "  entries  "  at  every 
term  of  the  Common  Pleas.  But  he  always  employed  other 
lawyers  to  conduct  his  cases  in  court,  when  there  was  to  be 
a  contest.  At  the  time  of  which  I  am  writing,  he  had 
amassed  a  fair  property,  and  was  disposed  to  accept  the 
office  of  Sheriff  of  his  county.  The  sheriffs  in  Massachu 
setts  were  always  appointed  by  the  Governor  and  Council ; 
they  were  almost  always  lawyers  ;  and,  from  the  dignity  and 
importance  of  their  office  and  their  official  relations  with  the 
judges,  it  was  fit  that  they  should  be  gentlemen.  General 
Nevers  was  in  all  respects  a  suitable  person  to  bear  the 
sword  of  justice,  and  to  represent  the  executive  authority 
of  the  Commonwealth. 

Having  made  up  his  mind  to  retire  into  the  office  of 
sheriff,  this  cautious  gentleman  looked  about  for  a  young 
man  on  whom  to  devolve  his  law  business,  and  on  whose 
assistance  he  could  rely  in  matters  arising  in  his  new  posi 
tion.  He  had  the  sagacity  to  see  that  what  he  wanted  was 
a  young  man  who  knew  more  than  he  did  in  the  law ; 
although  few  men,  old  or  young,  could  know  more  than  he 
did  in  the  common  affairs  of  life  that  had  fallen  within  his 
limited  range.  It  happened  that  James  C.  Alvord,  of 
Greenfield,  a  young  lawyer  of  the  most  eminent  abilities, 
but  who  had  not  been  long  at  the  bar,  came  to  attend  the 
law  lectures  at  Cambridge,  attracted  thither  by  the  accession 
of  Judge  Story  to  the  principal  chair.  A  strong  and  inti 
mate  friendship  grew  up  between  Alvord  and  Curtis.  Gen 
eral  Nevers  could  not  offer  to  Alvord  a  position  in  his  office  ; 


48  MEMOIR   OF   BENJAMIN   ROBBINS   CURTIS. 

for  Alvord's  future  was  already  secured  in  his  native  town 
of  Greenfield,  the  shire  town  of  the  county.  But  Alvord 
put  General  Nevers  and  my  brother  in  communication  with 
each  other;  and  the  result  was  that,  early  in  the  year  1831, 
the  latter  left  the  Law  School,  and  took  up  his  abode  in 
Northfield,  with  a  prospect  of  succeeding  to  the  business  of 
General  Nevers.  He  still  wanted  eighteen  months  of  the 
time  when  he  would  be  entitled  to  be  admitted  as  an  Attor 
ney  of  the  Common  Pleas. 

It  was,  in  one  aspect,  a  great  and  perhaps  an  unwise 
sacrifice  for  him  to  leave  the  Law  School.  Possibly  it  might 
have  been  better  for  him  to  have  completed  the  course  of 
preparatory  studies  at  the  school,  as  it  had  been  arranged 
by  the  Professors,  and  then  to  have  sought  a  knowledge  of 
practice  in  some  office  in  Boston.  But  the  real  motive 
must  be  told.  A  mutual  attachment  had  for  some  time 
existed  between  him  and  his  cousin,  Miss  Eliza  Maria 
Woodward.1  The  prospect  of  an  assured  income,  however 
small,  coming  sooner  than  could  be  expected  if  he  sub 
mitted  to  the  usual  waiting  that  is  the  lot  of  most  young 
lawyers,  decided  him  to  bury  himself  in  a  country  village, 
where  he  could  have  very  little  congenial  society,  scarcely 
any  books  but  such  as  he  could  take  with  him,  and  where 
he  must  encounter  the  risks  of  an  association  with  a  gentle- 

1  She  was  the  youngest  daughter  of  my  father's  eldest  sister,  by  her 
marriage  with  Mr.  William  H.  Woodward,  a  highly  respectable  lawyer  of 
Hanover,  New  Hampshire,  long  the  Treasurer  of  Dartmouth  College.  Mr. 
Woodward  was  the  defendant-in-error  in  the  celebrated  case  of  Dartmouth 
College  v.  Woodward,  decided  by  the  Supreme  Court  of  the  United  States  in 
1819.  He  died  before  the  final  decision  of  the  case,  but  his  family  continued 
to  reside  at  Hanover  for  many  years.  He  was  descended  from  the  cele 
brated  Captain  Miles  Standish,  the  Puritan  leader  and  warrior.  Josiah 
Standish,  third  son  of  the  great  captain,  settled  in  Preston,  Connecticut,  in 
1687.  His  daughter,  Mary  Standish,  was  the  mother  of  the  Rev.  Eleazar 
Wheelock,  the  founder  of  Dartmouth  College.  Mary  Wheelock,  daughter 
of  the  founder,  married  Bezaleel  Woodward,  a  Professor  in  the  College. 
Their  son,  W.  H.  Woodward,  was  Chief  Justice  of  the  Court  of  Common 
Pleas  of  New  Hampshire  ;  and  his  son  was  W.  H.  Woodward,  the  Treasurer 
of  the  College,  who  became  the  defendant-in-error  in  the  celebrated  liti 
gation. 


1831.]  LETTER   TO   MR.    TICKNOR.  49 

man  who,  with  all  his  good  qualities,  was  something  of  an 
oddity.  Cambridge  was  at  that  time  filled  with  a  new 
intellectual  activity.  My  brother's  position  in  the  Law 
School  was  every  thing  that  he  could  desire.  His  mother 
was  residing  there ; 1  and  in  Boston  the  house  and  library 
of  Mr.  Ticknor  were  always  open  to  him,  and  always 
afforded  many  attractions.  But  the  hope  of  an  early  frui 
tion  of  his  matrimonial  plans  carried  him  through  all  these 
sacrifices  and  all  the  hard  work  that  he  had  to  encounter, 
and  tinged  the  enterprise,  to  his  feelings,  with  a  romance 
which  was  understood  by  few  persons  but  himself  and  the 
young  lady  of  his  choice. 

He   had  not  been   long;   settled  at  Northfield  when   his 

O 

uncle  had  occasion  to  write  to  him  in  regard  to  a  feeling  of 
hostility  towards  Harvard  which  had  at  that  time  grown  up 
in  the  western  part  of  the  State.  The  answer  was  given  in 
the  following  letter  :  — 

To  MR.  TICKNOR. 

NORTHFIELD,  March  29,  1831. 

MY  DEAR  UNCLE,  —  I  received  your  letter  on  Friday  last,  and, 
not  having  seen  any  of  the  publications  of  which  you  speak,  I  went 
over  to  Greenfield  to  see  if  I  could  find  them  there.  I  was  not  able 
to  do  so,  nor  did  I  see  any  one  who  had  seen  such  communications  in 
any  of  the  Western  papers.  But  though  I  was  so  far  unsuccessful,  I 
found  in  all  the  most  intelligent  and  influential  men  here  enough 
of  the  spirit  and  feelings  likely  to  produce  such  effusions.  I  have 
talked  with  some  of  all  parties  ;  and,  as  near  as  I  can  ascertain,  there 
is  among  all  who  think  or  care  at  all  about  the  college  either  decided 
hostility  or  dissatisfaction  with  what  they  call  "  the  illiberal  policy 
towards  this  part  of  the  State."  The  hostility  is  confined  to  the 

1  She  removed  to  Cambridge  in  1826.  For  many  years  she  received  at 
her  table  eight  or  ten  of  the  resident  graduates  or  undergraduates  who 
desired  a  more  liberal  diet  than  the  college  "  commons  "  afforded.  At  her 
house,  therefore,  there  was  always  a  choice  collection  of  young  men  of 
good  manners  and  agreeable  conversation,  some  of  whom,  while  my  brother 
remained  in  Cambridge,  were  his  personal  friends,  and  all  of  whom  were 
persons  whose  society  he  was  sorry  to  lose. 
VOL.  i.  4 


50  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1831. 

"  Orthodox  party,"  and  I  have  reason  to  think  that  an  effort  has 
been  made  here  to  elect  such  Senators  as  would  do  their  utmost 
to  effect  a  change  in  the  present  state  of  things  at  Cambridge. 
The  effort  must  fail,  owing  to  political,  which  is  here  too  strong  for 
religious  excitement. 

But,  passing  over  this  party  and  all  those  who  are  enemies  to  the 
college,  all  the  most  respectable  men  in  this  part  of  the  State  are 
dissatisfied. 

The  causes  of  this  dissatisfaction  are,  that  the  expenses  of  an  edu 
cation  at  Cambridge  are  greater  than  are  necessary  ;  that  the  Col 
lege  is  sectarian ;  and  last,  but  far  from  least,  that  it  is  the  College 
of  Boston  and  Salem,  and  not  of  the  Commonwealth.  These 
three  things  they  believe  most  firmly,  and  they  act  accordingly,  and 
send  their  sons  to  Yale  or  Dartmouth,  or  even  to  Amherst,  rather 
than  to  Cambridge. 

These  are  not  the  views  of  narrow-minded  men,  or  of  those  who 
feel  little  interest  in  the  subject.  I  have  obtained  them  from  such 
men  as  Daniel  Wells  and  Samuel  C.  Allen,  and  they  are  certainly 
easily  accounted  for  even  if  they  are  not  well  founded. 

"  There  has  not  been  a  single  person  in  the  old  county  of  Hamp 
shire,"  said  the  Hon.  S.  C.  Allen,  the  other  day,  "  since  my  recol 
lection,  in  any  way  connected  with  the  College,  or  likely  to  exert 
his  influence  in  its  favor,  and  how  should  it  be  otherwise  than  that 
the  people  should  either  care  nothing  about  it,  or  be  led  by  its  ene 
mies  to  suspect  or  dislike  it." 

On  the  other  hand,  the  oth'er  colleges  have  persons  here,  and 
those  the  most  influential  men,  among  their  trustees  ;  and  these  men 
are  of  course  interested  to  do  all  they  can  in  support  of  the  institu 
tions  with  which  they  are  connected. 

I  am  told  that  this  dissatisfaction  is  increasing ;  that  the  circle  in 
which  Cambridge  is  respected,  and  in  which  its  influence  is  felt,  is 
constantly  contracting ;  and  that  the  number  of  students  from  this 
part  of  the  State  will  continue  to  diminish.  How  far  this  is  true 
you  yourself  can  judge  far  better  than  myself ;  but  if  the  influence 
of  the  College  would  be  materially  increased,  as  I  have  no  doubt  it 
would  be,  by  the  appointment  of  some  few  members  of  the  Board 
of  Overseers  from  this  part  of  the  country,  it  may  certainly  be 
worth  considering  whether  it  should  not  be  done,  rather  than 
lose  the  students  from  so  large  and  respectable  a  portion  of  the 
State. 


1831.]  LETTERS   TO    G.  W.  PHILLIPS.  51 

I  write  in  great  hurry,  for  next  week  is  court  week,  and  business 
is  just  now  pressing.  Remember  me  to  aunt,  and  say  that  I  shall 
soon  answer  her  kind  letter. 

Your  affectionate  nephew, 

j  B.  R.  CURTIS. 

GEORGE  TICKNOR,  Esq. 

The  following  letters  to  his  friend  Phillips  disclose  his 
feelings  in  regard  to  the  sacrifices  he  had  made,  and  the 
motives  which  led  to  them.  I  am  inclined  to  believe 
that  his  sober  renunciation  of  Boston  and  Cambridge  had, 
after  all,  a  little  of  the  delusion  under  which  the  fox  in  the 
fable,  whose  situation  he  disclaims,  labored,  when  he  recom 
mended  a  new  fashion  to  his  brethren.  But  the  letters  are 
full  of  his  thoughtful  and  reflecting  character,  and  of  the 
spirit  with  which  he  disciplined  himself  to  a  situation 
which  was  solitary  enough,  until  his  marriage  gave  him  an 
other  home  than  his  office. 

To  MR.  GEORGE  W.  PHILLIPS,  BOSTON. 

NORTHFIELD,  April  16,  1831. 

MY  DEAR  GEORGE,  —  I  have  never  answered  your  letter, 
which  I  received  a  long  time  ago,  because  I  had  nothing  to  say 
to  you  which  I  supposed  you  would  care  to  hear  or  know ;  and, 
indeed,  the  same  reason  would  prevent  me  from  writing  now,  did  I 
not  wish  to  hear  from  you,  and  I  suppose  I  shall  not  have  that 
pleasure  without  answering  your  last. 

The  reasons  which  you  gave  for  not  coming  here  are  unanswer 
able  ;  and  I  am  sometimes  glad  that  you  did  not  come,  so  total  is 
the  want  of  any  thing  to  please  or  interest  me  out  of  the  walls  of 
the  office,  —  in  which  I  spend  all  my  time,  —  if  I  except  the  scenery, 
which  is  now  putting  on  a  spring-like  look,  and  is,  even  thus  early, 
very  pleasant.  But  still  I  do  think  that  this  is  in  many  respects  a 
more  eligible  residence  than  Boston. 

There  may  be  those  who  can  hold  an  onward  course  in  the  midst 
of  all  the  interruptions  and  obstacles  with  which  a  city  must  sur 
round  them,  —  who  can  preserve  a  clear  and  quiet  and  happy  spirit, 
an  active  and  obedient  mind,  amidst  temptations  to  habits  which  are 
inconsistent  with  each  and  all  of  these ;  but  I  am  not  one  of  these, 


52  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1831. 

and   I   am  better,   morally,  intellectually,   and   physically,   where 
I  am. 

Do  not  smile  at  me  and  say  my  taste  for  the  country  is  like  that  of 
the  fox  who  approved  of  short  tails  /  for  it  is  not  so.  I  do  truly  feel 
and  believe  that  the  effect  of  the  quiet  and  almost  solitary  life 
which  I  lead  will  be  far  more  beneficial  to  me  than  all  the  advan 
tages  presented  by  Cambridge  or  Boston.  It  is  true  there  are 
some  weary  hours  in  a  week,  when  law  books  are  hardly  sufficient 
to  banish  all  thoughts  of  other  days ;  but  they  are  few,  and  time 
and  habit  will  continue  to  diminish  them.  I  spent  the  last  week  at 
Greenfield,  where  the  Supreme  Court  has  been  sitting,  and  where 
I  sa\v  much  of  Mr.  Bates.1  He  was  in  fine  spirits,  and  very  suc 
cessful  as  an  advocate.  He  is  certainly  a  graceful  speaker  ;  and, 
though  uncertain  and  very  unequal  in  his  arguments,  I  should 
think  he  would  be  considered  an  able  advocate  in  any  court  in  the 
Commonwealth.  He  inquired  particularly  after  you,  and  said  his 
family  were  all  well,  &c. 

If  you  see  Sohier,  please  to  ask  him  why  he  does  not  answer  my 
letter  which  I  wrote  him  long  since,  and  do  not  make  it  necessary 
for  me  to  send  the  same  inquiry  after  you. 

Yours  truly,  B.  R.  CURTIS. 

To  MR.  GEORGE  W.  PHILLIPS,  BOSTON. 

NORTHFIELD,  NOV.  2,  1831. 

DEAR  GEORGE,  —  It  gave  me  great  pleasure  to  receive  your 
last  letter ;  for  I  had  feared,  either  that  my  request  that  you  would 
not  write  to  me  more  on  a  subject  on  which  I  will  hardly  yield  to 
yourself  in  high  estimation  of  its  interest  and  importance,  but  which 
I  nevertheless  thought,  and  still  think,  we  had  better  not  write 
about,  —  I  say,  I  had  feared  that  this  request,  or  that  forgetfulness 
which  the  noise  and  bustle  and  the  many  changes  of  a  city  are  so 
apt  to  produce  towards  one's  country  friends,  had  put  a  final  stop  to 
our  correspondence.  But  I  should  have  been  truly  sorry  to  have 
had  it  so.  Now  that  I  have  left  Boston  and  its  vicinity,  and  all 
the  things  and  people  with  whom  I  have  been  connected  since 
infancy,  and  have  come  among  strangers,  to  fight  my  way  by  my 
own  unaided  strength,  I  do  assure  you  that  I  look  back  with  strong 

1  Hon.  Isaac  C.  Bates,  of  Northampton. 


1831]  LETTERS    TO   G.  W.  PHILLIPS.  53 

feelings  to  those  who  have  been  my  companions  and  friends  at  what 
will  probably  prove  to  have  been  the  happiest  part  of  my  life.  I 
have  here  a  good  field  for  professional  exertion,  as  well  as  an 
opportunity  to  do  much  good  in  other  ways  ;  but  there  is  little, 
very  little,  in  the  manners,  the  habits,  or  the  character  of  the  peo 
ple  to  which  I  can  look  for  sympathy.  I  am  thrown  entirely  upon 
my  own  resources  for  happiness,  and  you  may  be  sure  that  many 
of  these  are  drawn  from  the  past.  It  would  be  a  sad  thing  for  me, 
therefore,  if  I  should  find  my  old  friends  forgetting  me,  now  that  I 
have  come  away  from  them,  arid  now  that  I  so  much  need  their 
friendship. 

I  presume  I  should  tell  you  no  news  if  I  were  to  say  to  you  that 
I  am  engaged  to  my  cousin,  Miss  E.  M.  Woodward ;  for  I  suppose 
you  have  known  it  before.  There  is  no  keeping  such  a  thing 
secret,  even  it'  one  were  disposed.  You  have  seen  her,  I  think,  but 
do  not  know  her  much.  I  am  not  about  to  say  any  pretty  things 
about  her.  J  have  trusted  her  with  my  happiness  for  this  world, 
and  I  know  of  no  greater  compliment  I  could  pay  her ;  but  I  hope 
you  will  one  day  know  her  well. 

I  was  at  Burlington  with  my  sick  friend,  Deming,  when  Taylor 
was  there.  But  I  did  not  know  he  was  in  town  until  just  before 
he  left.  He  looked  well.  He  said  I  did  not ;  and  you  caution  me 
to  take  care  of  my  health.  I  received  your  caution  at  a  time  when 
I  was  nearer  giving  up  and  allowing  myself  to  be  sick  than  I  have 
been  since  the  summer  I  graduated,  when  I  had  a  fever,  as  you 
may  remember.  The  truth  is,  I  have  not  been  as  careful  of  my 
health  as  I  ought ;  but  I  hope  better  things  hereafter.  Poor  Dem- 
ing  I  shall  never  see  again,  I  fear.  It  is  too  probable  that  the 
grasp  of  a  disease  which  no  care,  no  change  of  climate,  can  relax,  is 
firmly  fixed  upon  him.  There  are  some  hopes  entertained  of  the 
effects  of  the  voyage  and  a  mild  climate  :  I  have  very  few. 

I  am  glad  you  continue  to  be  more  and  more  interested  in  our 
profession.  It  is  indeed  a  noble  science,  and  there  are  parts  of  its 
practice,  also,  which  yield  to  no  human  occupation  for  dignity  and 
interest.  As  for  myself,  I  love  it  unaffectedly  and  I  study  it  closely. 
My  progress,  like  that  of  every  student  who  has  been  but  a  short 
time  engaged  in  it,  is  slow.  Sometimes  I  do  not  appear  to  go 
along  at  all,  and  all  my  efforts  do  but  render  the  task  of  advance 
ment  apparently  more  hopeless ;  but  still  I  persevere,  and  do  not 
doubt  that  light  will  shine  in  upon  me  at  last,  and  clear  away  many 


54  MEMOIR    OF   BENJAMIN    BOBBINS    CUKTIS.  [1832 

of  the  shadows  which  are  now  broad  and  deep  over  nearly  all  the 
field. 

— 's  father  has  died  poor,  you  say.  It  will  doubtless  be  a 
benefit  to  his  son.  There  is  a  strange  fatality  attending  large  for 
tunes  in  New  England.  Where  will  old  -  — 's  fortune  be  when 
this  generation  are  dead  ?  Nature,  education,  chance,  every  thing, 
seems  to  unite  with  the  institutions  of  our  country  in  making  those 
first  who  were  last,  those  last  who  were  first. 

Do,  my  dear  George,  write  me  again  when  you  have  leisure,  and 
be  sure  it  will  ever  give  me  great  pleasure  to  hear  from  you. 

Ever  yours,  B.  R.  CURTIS. 

To  MR.  GEORGE  W.  PHILLIPS,  BOSTON. 

NORTHFIELD,  Feb.  11,  1832. 

I  was  very  glad  to  receive  your  last  letter,  my  dear  George,  arid 
I  assure  you  that  I  laughed  heartily  over  some  parts  of  it  which 
related  to  myself  as  well  as  others.  When  am  I  going  to  be  mar 
ried,  say  you.  Why,  truly,  you  might  have  learned,  even  from 
your  own  letter,  that  it  takes  two  to  make  a  bargain  of  that  kind, 
and  that  therefore  I  could  not  answer  the  question.  So  much  as 
this  I  will  say,  that  the  promise,  quoad  your  being  groomsman, 
was  made  in  1827,  if  I  recollect  right;  and  as  I  certainly  shall 
not  be  married  till  1833,  why,  I  can  plead  non  assump.  infra  sex 
annos  to  it ;  i.  e.  I  could  if  I  were  disposed,  but  I  assure  you  I  am 
not,  and  I  here  take  upon  myself  to  renew  the  promise,  if  you  will 
accept  of  it. 

I  had  heard  that was  engaged  to  Miss  ,  with  whom 

I  am  not  acquainted ;  but  be  she  who  and  what  she  may,  I 
sincerely  pity  her.  It  is  not  merely  that  he  is  dissipated,  though 
this  is  bad  enough  ;  but  he  is  thoroughly  and  entirely  heartless  and 
corrupt.  .  .  . 

You  ask  me  about  my  business.  It  is  as  good  as  I  expected. 
It  will  probably  be  worth  to  Wells  and  Alvord,  in  whose  names  and 
for  whose  benefit  it  is  transacted,  about  $800  during  the  year  that 
it  is  in  my  hands,  though  I  do  not  think  it  will  be  as  good  as  that 
to  me  during  the  first  two  years.  It  may  be  so,  however ;  and  if  I 
am  pretty  successful  at  the  outset,  it  probably  will.  I  believe  you 
never  rightly  understood  my  motives  for  coming  here.  The  first, 
certainly,  was  to  get  a  living  by  my  profession  immediately.  But 


1832.]  PRACTICE   AT   NOETHFIELD.  55 

1  had  others  which  weighed  not  a  little  with  me.  I  did  not  like  the 
influence  of  Boston  and  its  society  upon  young  men.  I  believed 
then,  and  I  believe  now,  that  at  the  end  of  six  or  eight  years  I 
should  be  a  better  man  and  a  better  lawyer,  and  should  have  been 
of  far  more  use  to  the  community,  if  I  came  here,  than  I  could  if  I 
went  into  your  city.  I  have  as  yet  seen  no  reason  to  doubt  the 
justice  of  my  conclusion.  At  the  same  time,  1  do  not  mean  to 
make  a  general  rule  of  it.  My  situation  and  character  were  both 
considered  in  arriving  at  it ;  and  they  whose  situations  and  charac 
ters  are  different  must  come  to  a  different  result. 

You  speak  of  coming  up  here  when  pleasant  weather  arrives.  I 
hope  to  have  the  pleasure  of  seeing  you  before  that  time ;  for  it  is 
my  intention  to  come  to  Cambridge  in  April,  and  spend  four 
months  there. 

There  are  some  branches  of  the  law  which  I  can  study  to 
peculiar  advantage  there,  at  the  close  of  my  last  year  ;  and  I  still 
think  that  there  is  no  place  in  this  country  for  getting  the  theory  of 
the  law  like  the  Cambridge  Law  School.  If  you  see  Sohier  or 
Taylor,  please  remember  me  to  them. 

Your  friend,  B.  R.  CURTIS. 

Fortunately,  young  Curtis  and  the  old  Northfield  lawyer, 
who  had  become  sheriff,  suited  each  other  well.  General 
Nevers  at  once  appreciated  the  acquisition  he  had  made,  and 
ever  afterwards  had  an  unbounded  respect  and  admiration 
for  his  young  iriend.  Whatever  he  could  do  to  promote 
my  brother's  interests  was  done.  My  brother,  on  his  part, 
adapted  himself  to  the  sheriff's  peculiarities,  and  aided  him 
in  his  affairs  with  untiring  industry.  The  law  business 
which  General  Nevers  had  surrendered  was  devolved  upon 
the  student  immediately  ;  although  it  continued  to  be  done 
in  the  name  of  Messrs.  Wells  and  Alvord,  of  Greenfield, 
until  my  brother  was  qualified  legally  to  take  charge  of  it  in 
his  own  right. 

During  his  residence  at  Northfield,  he  was  invited  by  the 
citizens  of  the  ancient  town  of  Deerfield  to  deliver  an  ad 
dress  on  the  centennial  anniversary  of  Washington's  birth,— 
Feb.  22,  1832.     At  this  time  he  was  in   his  twenty-third 


56  MEMOIR   OF    BENJAMIN   BOBBINS   CURTIS.  [1832 

year.  As  it  is  the  purpose  of  this  collection  of  his  writings 
to  put  within  the  reach  of  readers  whatever  illustrates  both 
his  early  maturity  and  the  subsequent  growth  of  his  mind, 
this  address  will  find  its  appropriate  place  next  after  the 
second  Bowdoin  prize  dissertation.  Like  that  production, 
it  is  remarkable  chiefly  for  the  knowledge  which  it  exhibits 
of  the  period  when  the  foundations  of  the  political  institu 
tions  of  New  England  were  laid. 

In  the  spring  of  this  year  (1832),  he  determined  to  con 
nect  himself  again  with  the  Law  School  in  Cambridge,  in 
pursuit  of  the  objects  described  in  the  following  letter:  — 

To  MR.  TICKNOR. 

XORTHFIELD,  Jan.  22,  1832. 

MY  DEAR  UNCLE,  —  I  write  to  ask  your  advice  relative  to  a  plan 
I  have  been  for  some  time  deliberating  on,  —  of  coming  to  Cam 
bridge  in  the  spring,  and  spending  the  summer  term  there  in  the 
Law  School.  There  is  one  branch  of  the  law,  viz.  the  doctrines 
and  practice  of  courts  of  equity,  which  I  have  no  means  of  studying 
here.  Both  books  and  instruction  are  wanting ;  the  former  being 
of  course  indispensable,  and  the  latter  even  more  necessary  in  this 
department  than  any  other  of  my  profession,  on  account  of  the 
want  of  elementary  treatises,  and,  indeed,  of  any  means  of  gaining 
an  entrance  to  its  most  simple  and  often-recurring  principles.1  The 
jurisdiction  of  our  Supreme  Judicial  Court  is  now  such  that  this 
knowledge  is  important,  and  there  is  every  reason  to  believe  that 
that  jurisdiction  will  be  extended  to  meet  the  increasing  wants  of 
the  community.  In  the  mean  time,  there  is  almost  an  entire  igno 
rance  on  the  subject  in  the  bar  of  Massachusetts  out  of  Boston  ; 
and  the  younger  part  of  the  profession  do  not  seem  to  be  making 
more  progress  in  it  than  their  fathers  have  done.  I  have  also 
thought  that  it  was  well  to  get  an  early  start  in  this  branch  of 
learning ;  for  it  must  be  difficult  for  one  bred  up  in  the  ri<>'id  rules 
of  the  Common  Law  to  imbibe  the  more  liberal  principles  of  Equity. 
If  I  can  get  this  start,  and  make  some  little  progress  under  an  in 
structor,  I  can  then  go  on  by  myself. 

In  addition   to  this,  I  have  heard   that  it  was  proposed  by  the 

1  Judge  Story's  "  Commentaries  on  Equity  Jurisprudence  "  had  not  then 
been  published. 


1832.]  A   TERM   AT   THE   LAW    SCHOOL.  57 

students  to  get  a  course  of  lectures  on  the  Civil  Law  from  Dr.  Follen 
in  the  summer  term,  either  at  the  expense  of  the  institution  or  at 
their  own  expense  ;  and  this  would  of  course  he  an  additional  in 
ducement,  for  though  I  may  find  little  opportunity  to  commence 
chancery  suits,  or  apply  the  doctrines  of  the  Civil  Law  in  the  remote 
town  of  Northfield,  I  know  you  would  not  have  me  form  my  plan 
of  studies  in  reference  to  the  narrow  arena  in  which  I  now  stand, 
or  limit  my  acquirements  to  the  humble  demands  which  are  made 
upon  me  here.  It  is  now  somewhat  more  than  a  year  since  I  came 
here,  and  I  have  had  a  good  opportunity  to  test  the  wisdom  of  my 
decision  to  come.  The  result  is,  I  have  not  been  disappointed, — 
the  place  and  the  business  are  much  as  I  had  supposed.  I  can  ob 
tain  a  comfortable  living  here  till  I  can  find  a  better  place ;  or,  if 
that  time  shall  ever  come,  till  my  acquirements  shall  enable  me  to 
seek  a  wider  field  where  more  is  to  be  gained,  though  the  competi 
tors  are  more  numerous. 

If  I  do  go  to  Cambridge,  Mr.  Alvord  will  spend  nearly  all  his 
time  here ;  but  the  nature  of  his  business  is  such  that  he  cannot 
[spend]  quite  all.  I  do  not  think  the  business  will  suffer  seriously, 
and  perhaps  not  at  all.  The  only  remaining  consideration  is  the 
expense ;  but  that  will  be  small,  and  is  not  in  itself  important  to 
me  in  comparison  with  the  advantages  which  I  expect  it  will  pur 
chase  for  me.  I  will  thank  you  if  you  will  have  the  kindness  to 
communicate  your  opinion  to  me  on  this  subject. 

I  returned  last  week  from  a  short  visit  to  Hanover.  I  left  Mrs. 
Woodward  and  Eliza  both  well,  Mrs.  W.  looking,  I  think,  better 
and  younger  than  I  have  seen  her  for  many  years. 

Will  you  give  my  love  to  Aunt  Anna,  and  say  to  her  that  I 
should  have  written  to  her  ere  this  time  to  ask  for  another  letter 
from  her,  had  I  not  been  incessantly  occupied,  what  with  study  and 
business,  —  which  last  has  taken  me  about  from  one  place  to  another 
a  good  deal,  and  broken  up  my  time ;  but  I  shall  do  so  soon. 
Please  to  remember  me  to  Nanny,  and  give  my  love  to  her  ;  I  hear 
that  she  has  entirely  recovered  her  flesh  and  strength.1 
I  remain  yours  affectionately, 

B.  R.  CURTIS. 

GEORGE  TICKNOR,  Esq. 

Having  spent  the  spring  and  summer  term  of  1882  at  the 
Law  School,  in  pursuance  of  the  plan  described  in  his 

1  Miss  Anna  E.  Ticknor,  the  eldest  daughter  of  Mr.  Ticknor. 


58  MEMOIR   OF   BENJAMIN  BOBBINS   CUKTIS.          [1833. 

letter,  lie  returned  to  Northfield,  and  was  admitted  as  an 
Attorney  of  the  Court  of  Common  Pleas,  at  Greenfield,  in 
August  of  that  year.  The  succeeding  winter  was  passed 
in  the  somewhat  dreary  round  of  a  country  practice,  unre 
lieved  by  any  social  enjoyments  ;  but  his  marriage  took 
place  in  the  following  May.1  Miss  Woodward  had  a  little 
fortune  of  her  own,  —  just  sufficient  to  furnish  tastefully  a 
small  house  in  Northfield,  in  which  the  young  couple  im 
mediately  commenced  housekeeping. 

Besides  General  Nevers,  there  had  for  many  years  been 
no  other  lawyer  in  the  town  of  Northfield  excepting  a 
pettifogger  of  the  worst  character.  This  person  was  a 
regular  member  of  the  bar,  —  at  least  he  had  been  admitted 
as  an  attorney  of  the  Common  Pleas  ;  but  he  was  as  igno 
rant  of  law  as  he  was  knavish.  He  preyed  upon  the 
farmers  and  poor  people  of  the  "  hill  towns"  in  his 
neighborhood,  with  a  rapacity  almost  unheard  of.  He 
possessed  a  large  fund  of  audacity  and  cunning,  and  no  man 
who  fell  into  his  clutches  was  safe.  Antedating  writs, 
making  false  affidavits,  procuring  snap  judgments,  obtain 
ing  people's  signatures  to  papers  falsely  read  to  them,  and 
such  like  performances,  were  his  common  avocations.  Alto 
gether,  he  was  a  very  great  scoundrel,  of  considerable  nat 
ural  ability,  —  such  as  might  be  portrayed  in  fiction,  as  an 
extravaganza,  but  not  often  to  be  found  in  our  profession  in 
real  life,  as  it  may  be  hoped.  Against  this  man,  my  brother 
was  pitted  in  trials  before  justices  of  the  peace,  soon  after 
he  went  to  Northfield;  and  many  a  pitched  battle  they  had, 
in  which  my  brother  was  victorious,  from  his  superior 
knowledge,  whenever  the  justice  was  intelligent  enough  to 
appreciate  what  the  younger  lawyer  told  him  was  the  law, 
and  honest  and  fearless  enough  to  encounter  the  hatred  of 
the  older  one. 

1  On  account  of  the  relationship  of  both  parties  to  Mr.  Ticknor,  he 
thought  proper  to  have  the  marriage  solemnized  at  his  house  in  Boston.  It 
occurred  on  the  8th  of  May,  1833. 


1834.]  AN  ATTORNEY  DISBARRED.  59 

At  length  this  man's  rascalities  became  intolerable.  The 
whole  community  rose  up,  and  demanded  of  the  bar  of  the 
county  that  this  nuisance  be  abated.  The  culprit  was  pre 
sented  to  the  Court  of  Common  Pleas,  held  at  Greenfield, 
on  charges  which  were  most  vigorously  and  unsparingly 
prosecuted  by  Mr.  James  C.  Alvord,  who  had  been  deputed 
to  that  duty  by  the  bar.  He  was  defended  by  the  late 
Hon.  Pliny  Merrick,  of  Worcester,  then  in  the  prime  of 
life  and  at  the  height  of  his  brilliant  reputation  as  an 
advocate.  Mr.  Merrick  made  a  powerful  and  ingenious 
argument  on  all  the  charges ;  but  at  the  close,  conscious  of 
the  weakness  of  his  case,  in  a  most  touching  and  pathetic 
appeal  he  threw  his  client  upon  the  mercy  of  the  court. 
But  it  was  a  case  in  which  the  mercy  had  to  be  extended  to 
the  community.  At  the  next  term,  the  Chief  Justice  of  the 
court,  the  late  Hon.  John  M.  Williams,  reviewed  the  evi 
dence  with  stern  severity,  and  ordered  the  respondent  to  be 
stricken  from  the  rolls.1 

I  have  related  this  occurrence,  because  my  brother  was  a 
good  deal  embarrassed  as  to  the  part  he  ought  to  take  in  it. 
The  man  had  been  for  years  a  bitter  enemy  of  General 
Nevers ;  he  had  become  a  bitter  enemy  of  my  brother ; 
and  many  of  his  victims  were  their  clients,  or  were  per 
sons  who  had  resorted  to  them  for  advice.  He  was  their 
regular  antagonist  in  half  the  small  suits  and  controversies 
springing  up  in  their  section  of  the  county.  At  length, 
after  a  good  deal  of  hesitation,  my  brother  decided  not 
to  take  any  active  part  in  the  prosecution,  but  to  fur 
nish  the  committee  of  the  bar  with  such  facts  as  had 
come  within  his  knowledge,  and  with  the  names  of  the 
witnesses. 

The  poor  culprit,  smarting  under  his  disgrace,  brought  an 
action  for  libel  against  Mr.  Daniel  Wells,  who  had  signed 

1  I  was  present  at  the  hearing,  and  also  at  the  decision,  in  1834.  The 
whole  proceeding  was  one  of  painful  interest,  but  of  very  salutary 
example. 


60  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1834. 

the  charges  on  which  he  was  presented  to  the  court. 
There  is  extant,  in  manuscript,  an  elaborate  and  learned 
brief,  which  my  brother  prepared  for  the  defence  of  this  ac 
tion  when  it  was  expected  to  be  argued  before  the  Supreme 
Court,  at  its  law  term  held  at  Northampton,  in  September, 
1834.  The  case  is  not  reported,  and  it  was  probably  never 
argued.  The  defence  was,  that  the  paper  which  Mr.  Wells 
had  signed  was  a  privileged  communication  ;  and  as  the 
intended  argument  embraced  much  curious  learning  and 
skilful  reasoning,  to  establish  the  right  of  the  bar  to 
inquire  into  the  official  misconduct  of  its  members,  the 
brief  is  placed  in  the  second  volume  of  this  work.1 

In  regard  to  my  brother's  forensic  powers  at  this  period 
of  his  life,  I  am  able  to  speak  from  some  personal  observa 
tion,  as  I  was  a  student  at  law  in  the  office  of  Messrs. 
Wells  and  Alvord,  in  Greenfield,  during  a  part  of  the  time 
of  his  practice  in  that  county.  A  description  of  his  manner 
and  his  accomplishments  can  be  best  given  by  selecting  a 
particular  case,  —  one  which  he  had  nursed  with  great  care 
through  all  the  intricacies  of  special  pleading,  until  certain 
complicated  issues  had  been  developed.  As  the  "  conclu 
sions  "  of  the  pleadings  w^ere  "  to  the  country,"  the  issues 
were  to  be  put  to  the  jury  under  the  directions  of  the 
court  upon  the  law.  The  jury  was  composed  of  respectable 
farmers,  men  of  plain,  ordinary  intelligence.  The  contro 
versy  related  to  a  quantity  of  shingles;  and  the  plaintiff 
(my  brother's  client),  who  was  immensely  interested  to 
beat  his  adversary  in  a  matter  worth  possibly  fifty  dollars, 
probably  expected  to  pay  his  lawyer  a  fee  of  ten  or  fifteen. 
But  the  interest  with  which  the  spectators  watched  the  pro 
ceedings  in  this  little  case  did  not  depend  upon  the  amount 
in  controversy,  or  the  fee.  The  issues  had  been  evolved 
with  such  beautiful  nicety  —  the  defendant's  counsel  being 
also  a  good  pleader  —  that  the  attention  of  the  bar  was 

1  It  will  be  found  by  consulting  the  Index,  verb.  "  Wells." 


1833.1  A   NURSERY   TALE.  61 

uncommonly  attracted  by  the  contest.  It  fell,  of  course,  to 
my  brother,  representing  the  plaintiff,  to  open  the  issues 
and  explain  them  to  the  jury.  He  did  it  with  all  that 
admirable  clearness  of  statement,  precision,  and  lucid 
arrangement,  which  characterized  him  afterward;  leading 
the  jury  through  a  maze  of  technical  distinctions,  until  he 
made  them  comprehend  precisely  what  they  were  to  find, 
and  the  logical  order  in  which  they  were  to  deal  with  the 
questions.  The  presiding  judge  was  at  the  same  time 
instructed  how  he  ought  to  present  the  issues  to  the  jury 
in  his  charge,  and  he  followed  in  the  line  which  the  young 
advocate  had  given  him.  My  brother  gained  his  case.  It 
was  long  remembered  in  the  locality  as  a  striking  exhibi 
tion  of  his  peculiar  powers.1 

An  anecdote  which  belongs  to  a  little  later  period  may 
be  related  here,  because  it  refers  to  his  residence  at  North- 
field.  After  he  had  been  for  a  short  time  practising  in 
Boston,  he  had  occasion  to  use  his  knowledge  of  special 
pleading  against  a  very  astute  opponent,  and  used  it  in 
such  a  manner  that  some  one  asked  him  how  he  came  to 
know 'so  much  about  that  science.  He  replied  that  he  had 
studied  it  a  great  deal  while  he  was  at  Northfield,  and 
knew  by  heart  the  whole  series  of  declarations,  pleas,  rep 
lications,  rebutters,  sur-rebutters,  &c.,  as  given  by  Chitty ; 
that  he  had  sometimes  walked  the  floor  of  his  nursery  for 
hours  in  the  night,  with  a  sick  child  in  his  arms,  repeating 
to  it  these  forms  ;  and  that  he  found  them  as  good  a  lullaby 
as  any  thing  in  Mother  Goose,  and  much  more  of  a  relief 
to  his  own  mind. 


1  It  generally  happens  in  nisi  prins  courts  held  in  rural  regions,  that  the 
intelligent  men  of  the  county  are  largely  represented  at  the  shire  town 
during  "  court  week  ; "  and  the  whole  of  the  county  bar  is  also  commonly 
present.  A  man's  abilities  are  thus  gauged  on  the  spot  by  a  body  of  per 
sons  who,  in  a  very  few  days,  diffuse  their  estimate  of  him  through  the 
entire  county.  In  the  large  cities,  a  reputation  is  of  comparatively  slower 
growth,  because  the  proportion  of  persons  who  attend  the  courts  is,  rela 
tively  to  the  whole  community,  much  smaller  than  in  the  country. 


62  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1833 

His  residence  in  Northfield,  reckoning  from  the  time  when 
he  went  there  in  1881,  covered  a  period  of  three  years. 
During  all  this  time  he  may  be  said  to  have  been  in  prac 
tice,  although  his  practice  after  he  had  been  admitted  in 
the  Common  Pleas  extended  only  from  August,  1832,  to 
September,  1834.  He  came  forward  at  once,  on  his  first 
entrance  into  the  active  duties  of  his  profession,  as  a  well- 
equipped  lawyer,  able  to  cope  with  any  antagonist  whom  he 
was  likely  to  meet  in  that  part  of  the  State.  Besides  yield 
ing  him  an  income  sufficient  for  his  immediate  wants,  his 
country  practice  was  of  great  value  to  him  as  a  field  in 
which  to  try  his  powers  and  to  make  a  reputation.  I 
should  say,  however,  that  the  chief  benefit  which  he 
derived  from  his  residence  at  Northfield  was  in  the  oppor 
tunity  it  afforded  him  for  study  in  connection  with  business, 
and  for  acquiring  the  habit  of  thorough  preparation  of  his 
cases.  His  time  could  not  be  fully  occupied  by  his  prac 
tice  ;  and,  in  the  long  winter  nights  and  summer  days,  there 
was  much  room  for  serious  reading.  It  was  then  that  he 
acquired  his  extensive  knowledge  of  the  Common  Law,  which 
he  explored  in  the  pages  of  Coke,  in  the  Year  Books,  and  in 
the  later  Reports.  He  had  carried  with  him  to  Northfield 
all  the  books  that  he  could  afford  to  buy,  and  some  that 
were  loaned  to  him.  It  was  not  a  large  collection,  but  it 
was  chosen  with  sound  judgment  from  the  books  out  of 
which  the  earlier  law  could  be  most  profitably  learned. 
The  statutory  and  customary  law  of  Massachusetts,  the  law 
of  real  property  and  real  actions,  the  law  of  contracts,  and 
the  system  of  common-law  pleading,  were  the  branches 
most  involved  in  his  practice  during  this  period.  Plis 
knowledge  of  equity  did  not  come  into  use  until  later,  wrhen 
he  began  to  practise  in  the  courts  of  the  United  States. 
Indeed,  the  equity  jurisdiction  of  the  courts  of  Massa 
chusetts  was  at  that  time  somewhat  narrow  and  frag 
mentary. 

His  studies  in  Constitutional  Law  at  this  period  were  con- 


1833.]  LOOKING   FOE   A   WIDER    FIELD.  63 

siderable.  He  had  the  benefit  of  Judge  Story's  lectures  on 
Constitutional  Law,  at  Cambridge,  by  his  short  attendance 
there  in  the  spring  of  1832 ;  and  he  now  followed  out  the 
principal  topics  in  the  decisions  of  the  Supreme  Court  of 
the  United  States.1 

But  the  Northfield  sphere  could  not  last  long,  for  a  man 
who  was  made  for  a  much  greater  one.  We  begin  to  get 
traces  of  a  yearning  for  a  wider  and  more  varied  field  in 
the  autumn  of  1833. 

To  MR.  TICKNOR. 

NORTHFIELD,  Sept.  22,  1833. 

MY  DEAR  UNCLE,  —  I  wish  to  communicate  to  you  a  plan  which 
I  have  under  consideration  relative  to  my  removal  from  Northfield 
to  Boston,  with  a  view  to  attempting  to  establish  myself  in  business 
in  the  latter  place  as  a  lawyer.  I  wish  to  speak  of  it,  not  as  a  thing 
settled  or  resolved  upon,  but  merely  as  a  project  which  is  in  my 
mind ;  and  to  lay  before  you,  as  one  of  my  best  and  earliest  and 
wisest  friends,  my  own  views  in  regard  to  this  important  step,  and 
to  ask  of  you  yours  in  return. 

And,  first,  you  will  naturally  ask,  Why  leave  Northfield  at  all? 
You  are  doing  well  there  at  present,  and  may  hope  to  do  better  in 
future  :  why,  then,  you  may  say,  do  you  not  content  yourself  there  ? 
This  is  undoubtedly  the  first  point  to  be  settled,  and  I  have  settled 
it  with  myself  after  no  little  reflection.  I  know  you  will  not 
accuse  me  of  vanity  or  self-conceit,  if  I  tell  you  that  one  great  rea 
son  which  has  determined  me  not  to  consider  Northfield  my  perma 
nent  home  is,  because  I  deem  myself  worthy  of  a  wider  field  than 
can  ever  be  open  to  me  here.  I  do  not  mean  that  it  is  not  sufficient 
for  me  now,  or  that  it  would  not  continue  to  be  for  some  years  to 
come,  but  that  I  do  look  forward  to  the  time  when  it  would  no 
longer  be  so.  If  I  am  in  an  error  in  regard  to  this,  it  is  an  error 
into  which  I  have  been  led,  not  by  any  over-estimate  of  myself,  but 
by  the  repeated  and  urgent  advice  of  such  men  as  Judge  Story  and 
Mr.  Ashmun  and  Mr.  Wells,  who  from  my  first  coming  here  have 
uniformly  told  me  that  it  was  a  good  present  arrangement,  but  that 

1  Judge  Story's  "  Commentaries  on  the  Constitution"  were  not  published 
until  January,  1833. 


64  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1833. 

I  must  not  think  of  settling  permanently  here,  and  must  be  careful 
not   to   remain   too  long.     I  repeat,  therefore,   what   I  have   said 
above,  —  that  I  am  satisfied  that  both  on  account  of  the  character 
of  the  people,  and  the  comparative  narrowness  of  the  Held  for  ex 
ertion    here,    I    should    not    be   contented   permanently    to    make 
Northfield  my  home.     The  next  thing  to  be  determined  is,  when 
and  how  to  leave  here  and  establish  myself  elsewhere  ;  and,  also, 
where  shall  I  go  when  I  do  leave  here?     As  to  this  latter  point,  I 
have  always  proposed  to  myself  to  go  to   Boston  as  my  ultimate 
destination.      There  is  the  home  of  all  my  dearest  and  most  prized 
associations,  and  of  most  of  my  friends  ;  and  success  and  respecta 
bility  and  usefulness  there  have  always  formed  the  grand  objects  of 
professional  exertion  in  my  mind.      So  far,  therefore,  all  is  clear 
enough.      But  when  to  go  there,  and  how  to  go  through  the  slow 
and  discouraging  process  of  getting  professional  business  and  ob 
taining  a  support  in  the  mean  time,  —  these  have  been  the  difficulties 
with  me ;  and  it  is  only  because  a  plan  is  now  offered  which  seems 
calculated  to  relieve  me  from  some  of  these  difficulties,  that  I  have 
been  led  to  think  of  leaving  here  at  this  time.     The  plan  is  as  fol 
lows  :  Mr.  J.  C.  Alvord  offers  to  form  a  partnership  with  me,  —  he 
remaining  at   Greenfield  with  Mr.  Wells,  and  I  going  to  Boston 
and  opening  an  office  there  ;  the  profits  of  his  business  at  Green 
field  to  be  united  to  the  profits  of  my  business  at  Boston,  and  the 
whole  sum  to  be  equally  divided  between  us.     This  arrangement  to 
continue  for  three  years  ;  at  the  end  of  that  time,  he  to  have  the 
option  either  to  remain  at  Greenfield  for  a  definite  time  longer  on 
the  same  terms,  or  to  come  to  Boston  and  go  into  business  with  me 
there  on  the  same  terms.     I  suppose  we  could  calculate  with  great 
certainty  upon  $1,000  per  annum  from  the  office  at  Greenfield,  and 
with  much  probability  upon  $1.200  per  annum.     The  time  when  I 
am  to  leave  here  is  some  time  between  this  and  the  1st  of  May  next. 
The  question  is,  Shall  I'close  with  this  offer?     Most  of  the  reasons 
in  favor  of  and  against  it  will  naturally  suggest  themselves  to  you. 
Of  some  I  would  say  a  few  words.     It  may  seem  at  first  view,  per 
haps,  surprising  that  I  should  consider  my  chance  of  success,  both 
immediate  and  remote,  better,  if  I  should  come  to  Boston  now,  than 
it  would  be  if  I  should  wait  a  few  years.      Yet  I  do  so  consider 
it.     In  the  first  place,  unless  a  lawyer  brings  with  him  to  a  city  a 
great  reputation  as  an  advocate  or  as  a  scientific  lawyer,  he  must 
be  content  to  begin  with  small  business,  —  he  must  acquire  the  con- 


1833.]  LOOKS   TOWARDS   BOSTON.  65 

fidence  of  people  one  by  one.     Now,  a  young  man,  who  has  no 
other  reputation  than  that  of  being  glad  to  get  work,  and  careful  in 
performing  it,  is  much  more  likely  to  get  this  kind  of  business  than 
one  who  has  already  acquired  some  reputation  as  an  advocate  or  law 
yer.     People  do  not  like  to  go  to  a  counsellor  of  the  Supreme  Court 
who  has  come  into  Boston  because  he  has  gained  an  extended  reputa 
tion  in  the  country,  and  ask  him  to  collect  a  five-dollar  note.     They 
think,  that  is  not  what  he  has  come  here  for,  arid  we  will  give  it 
to  some  young  man  who  will  feel  obliged  to  us  for  it.     It  seems  to 
me,  therefore,  that  I  should  go  through  these  steps  more  readily 
and  easily  now,  than  I  should  after  waiting  a  few  years.     But  this  is 
riot  the  only  reason.     The  desire  of  improvement  —  of  strength 
ening  and  advancing  myself  in  the  science  of  the  law,  as  well  as  in 
all   intellectual    improvement    within    my  means — is   a  powerful 
reason  to  prevail  upon  me  to  leave  Northfield  at  this  time.     I  have 
been  here  now  nearly  three  years.     Two  years  of  that  time  have 
been  passed  in  a  pretty  extensive  and   very  diversified  practice. 
From  a  bill  in  chancery  down  to  a  suit  on  a  five-dollar  note,  nearly 
all  varieties  of  practice  have  passed  through  my  hands  ;  and  that, 
too,  when  I  was  far  from  aid  or  counsel,  and  obliged  to  rely  upon 
my  own  investigations  —  often  upon  my  own  inventions — to  help 
me  through  difficulties  and  novelties.     The  result  is  such  as  would 
naturally  follow.     While  I  have  acquired  considerable  knowledge 
of  practice,  and  some  facility  and  dexterity  in  the  art,  I  have  not 
been  gaining  ground  as  I  wished  in  the  science  of  the  law.     The 
course  of  study  which  Mr.  Ashmun  was  so  kind  as  to  lay  out  for  me 
when  I  left  his  care  has  been  broken  in  upon  and  irregularly  pur 
sued  ;  and  I  feel  every  day  as  if  I  were  losing  my  hold  upon  the 
roots  and  groundwork  of  the  science  which  I  had  so  painfully  and 
laboriously  laid.     I  feel  the  force  of  a  remark  which  I  once  heard 
Mr.  Ashmun  make ;  when  asked  if  some  person  "  was  a  good  law 
yer,"  he  answered,  "  No,  he  has  always  had  too  much  business  to 
be  a  good  lawyer."     At  the  same  time  I  feel  that  I  was  never  so 
well  prepared  for  the  study  of  the  law  as  I  am  now ;  and  that,  if  I 
could  have  leisure  and  books  and  advice,  I  could  go  on  with  an 
ease  and  freedom  to  which  I  was  a  stranger  before  my  mind  had 
become  habituated  to  think  upon  and  decide  questions  of  law,  and 
when  I  was  almost  at  every  step  checked  and  embarrassed  by  forms 
and  modes  of  proceeding  of  which  I  was  ignorant.     Now,  all  these 
three  things  —  leisure,   books,   advice  —  I  should  have  if  I  came 
VOL.  i.  5 


66  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1833 

to  Boston,  and  I  look  upon  the  kind  offers  which  Judge  Story  has 
made  me  in  regard  to  the  latter  as  no  small  inducement  to  come 
there.  After  all,  however,  I  do  feel  that  I  must  run  some  risks  by 
taking  this  step,  and  it  is  therefore  that  I  wish  for  the  advice  of  my 
friends  upon  it.  Will  it  be  too  much  to  ask  of  you  to  show  this 
letter  to  Mr.  Charles  Curtis,  whose  great  and  uniform  kindness  to 
me  emboldens  me  to  trouble  him  also  with  my  plan,  and  whose 
knowledge  of  the  subject  of  it  would  render  his  opinion  of  great 
value  to  me.  We  are  well  and  happy  here  ;  and  Eliza  joins  me  in 
love  to  aunt  and  the  children. 

Truly  your  affectionate  nephew, 

B.  R.  CURTIS 

To  MR.  TICKNOR. 

NORTHFIELD,  Oct.  10,  1833. 

Mr  DEAR  UNCLE,  —  Although  I  am  unable  at  this  time  fully 
to  answer  your  kind  letters,  yet  I  can  thank  you  for  the  interest 
you  have  shown  in  regard  to  my  plan,  and  I  do  so  most  truly.  I 
shall  be  in  Boston  about  the  middle  of  November,  and  then  I  shall 
decide  whether  or  not  to  come  there  to  live.  Until  that  time,  I 
shall  remain,  as  at  present,  entirely  undecided.  I  am  not  able  to 
be  there  before  the  15th  of  November,  as  the  court  sits  at  Green 
field  on  the  second  Monday,  and  will  detain  me  a  week.  Before 
that  time  —  and  I  believe  about  the  last  of  October  —  the  pre 
mium  on  my  policy  of  insurance  becomes  due.  Will  you  have  the 
goodness  to  pay  it  to  the  company,  and  I  will  repay  you  when  I 
come. 

Mrs.  Woodward  arrived  here  on  Wednesday  evening,  well,  and 
after  a  comfortable  journey.  Eliza  and  I  are  well,  and  send  love 
to  aunt  and  yourself. 

Yours  affectionately, 

B.  R.  CURTIS. 

The  result  of  his  visit  to  Boston  was,  that,  in  the  winter 
of  1833-34,  he  received  an  invitation  from  Mr.  Charles  Pel- 
ham  Curtis,  of  that  city,  to  become  his  associate  in  business ; 
a  plan  which  of  course  superseded  the  proposed  arrangement 
with  Mr.  Alvord.  Mr.  C.  P.  Curtis,  who  was  only  a  quite 
distant  relative,  had  at  this  time  been  a  member  of  the  Bos- 


1834.]  CHARLES   PELHAM   CURTIS.  67 

ton  bar  for  a  period  of  twenty  years.  He  had  an  excel 
lent  commercial  business,  and  was  greatly  distinguished  for 
his  accuracy,  method,  and  systematic  habits  as  a  lawyer. 
His  clients  were  numerous,  and  among  them  were  many 
of  the  most  substantial  merchants  of  his  native  city,  who 
had  known  and  trusted  him  in  their  affairs  from  his  en 
trance  into  his  profession.  He  had  by  the  most  industri 
ous  devotion  to  it,  aided  by  singularly  practical  abilities, 
worked  his  way  up,  from  his  youth,  to  an  eminent  position 
at  a  bar  that  was  always  furnished  with  learned  and  ac 
complished  rivals,  against  whom,  any  successful  competitor 
must  needs  have  had  more  than  common  powers.  As  an 
advocate,  he  was  able  to  hold  a  good  rank,  from  his  clear 
ness  and  precision,  and  from  competent  although  not  exten 
sive  learning.  As  a  man  of  affairs,  he  was  wise,  sagacious, 
of  perfect  integrity,  fail  and  upright  in  his  practice,  firm 
and  resolute  in  pursuit  of  legitimate  and  just  ends,  always 
courteous,  and  of  a  singularly  cool  and  rarely  disturbed 
temper.  No  man  was  more  respected,  or  enjoyed  more  of 
the  confidence  of  the  community  of  his  native  city,  than 
did  this  distant  kinsman,  who,  in  the  winter  of  1833-34,  at 
tracted  by  my  brother's  reputation,  offered  to  share  with 
him  his  business.1  It  was  a  tempting  offer ;  for  not  only 

1  The  descent  of  these  two  gentlemen  from  their  common  ancestor  was 
as  follows :  — 

WILLIAM  CURTIS,  of  Roxbury,  b.  1592,  emigrated 

|  1632,  d.  1672. 

ISAAC,  b.  1642. 

SAMUEL,  6.  1688,  d.  1722. 

BENJAMIN,  b.  1722,  d.  1773.  OBADIAH,  b.  1724,  d.  1811. 

BENJAMIN  (2d),  Physician,  b.  1752,  d.  1784.  THOMAS,  b.  1750,  d.  1812. 

BENJAMIN  (3d),  Shipmaster.*  CHARLES  PELHAM,  b.  1792, 

|  d.  1864. 

BENJAMIN  BOBBINS,  6.  1809,  d.  1874. 

*  Benjamin  (3d),  my  father,  in  a  deed   executed   In  1811,  described   himself  as 
u  mariner." 


68  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1834. 

did  it  at  once  insure  a  professional  opening  in  a  new  sphere 
attended  by  great  advantages,  but  the  social  position  and 
personal  qualities  of  Mr.  C.  P.  Curtis  rendered  such  a 
connection  with  him  all  that  could  be  desired.  For  a 
period  of  thirty  years,  their  friendship  was  never  dis 
turbed  by  a  single  difference,  a  single  jealousy,  or  over 
clouded  by  a  single  shadow.  Although  the  younger  jf 
these  two  associates  far  outstripped  the  elder  in  distinc 
tions  and  honors,  and  indeed  rose  rapidly  to  a  much  higher 
position  at  the  bar  than  the  senior  ever  attained,  the  lib 
erality  of  the  elder  partner  in  their  pecuniary  relations 
always  kept  pace  with  the  younger's  increasing  power  to 
augment  their  joint  earnings  while  they  remained  to 
gether  ;  and  his  pride  in  that  younger's  success  and  fame 
was  like  that  of  a  father.  The  terms  of  their  first  connec 
tion  can  be  learned  from  the  following  letter :  — 

To  MR.  TICKNOR. 

NORTHFIELD,  April  24,  1834. 

MY  DEAR  UNCLE,  — .  .  .  I  have  settled  definitely  my  arrange 
ments  with  Mr.  C.  P.  Curtis,  and  am  to  become  his  partner  in  Sep 
tember  next.  I  am  to  have  one-half  the  profits  of  all  business  in  the 
Court  of  Common  Pleas,  collection  of  debts,  making  common  convey 
ances,  opinions  on  titles,  and  some  few  other  small  items ;  he  pays 
all  expenses  of  the  office ;  these  terms  to  last  one  year.  At  the  end 
of  that  time  I  am  to  have  better  terms,  provided  —  I  deserve  them. 
He  thinks  the  profits  of  the  first  year  will  be  $1,000.  I  shall  be 
well  content  with  this  for  one  year,  with  better  things  in  prospect. 
We  shall  break  up  here  in  August,  and  Eliza  and  the  boy  (whom 
we  call  Charles  Deming,  from  my  friend  who  is  dead)  will  go  to 
Cambridge  then.  I  shall  remain  till  after  the  autumn  courts  and 
come  some  time  in  September.  William  has  concluded  to  succeed 
me  at  Northfield.1  I  do  not  think  he  can  do  so  well  anywhere  else 
at  present.  He  can  step  into  the  most  of  my  business  here  with 
out  difficulty  ;  enough,  I  think,  to  give  him  $800  a  year.  He  would 
not  make  so  much  money  at  Greenfield  in  his  present  partnership 

1  His  brother-in-law,  Mr.  William  G.  Woodward. 


1834.]  CHIEF   JUSTICE   SHAW.  69 

We  are  all  very  well.  Charlie  flourishes  finely,  and  they  tell  me 
is  a  fine  child ;  never  having  looked  at  a  baby  before,  I  do  not  pro 
fess  to  be  able  to  form  an  opinion  for  myself. 

Give  my  love  to  aunt,  and  believe  me, 

Your  affectionate  nephew,         B.  R.  CURTIS. 

My  brother  was  admitted  as  an  attorney  of  the  Supreme 
Judicial  Court  of  Massachusetts,  at  Northampton,  in  Sep 
tember,  1834.1  This  made  him  known  personally  to  Chief 
Justice  Shaw  and  his  associates  on  that  very  eminent 
bench ;  and  it  was  partly  through  them  that  his  reputation 
reached  a  few  of  the  members  of  the  profession  in  Boston, 
before  he  had  actually  removed  to  thai  city.'2 

1  The  Supreme  Court  sat  in  bane  at  Northampton,  for  the  three  counties 
of  Hampshire,  Hampden,  and  Franklin. 

2  It  has  been  my  fortune,  in  the  course  of  a  professional  life  of  more 
than  forty  years,  to  practise  before  some  very  distinguished  judges.     But 
I  cannot  mention  the  name  of  Chief  Justice  Shaw  without  saying  that,  in 
all  the  qualities  which  make  a  great  judicial  magistrate,  —  in  strength  of 
intellect,  in  depth  of  mental  vision,  in  comprehensive  grasp  of  every  ques 
tion,  however  difficult,  that  came  before  him,  in  application  to  it  of  the 
appropriate  learning,  and  in  the  unquestioned  and  unquestionable  poise  in 
which  he  held  the  scales  of  Justice,  until  one  or  the  other  ought  to  pre 
dominate,  I  have   known   no  man  who  was  his  superior.     Chief  Justice 
Marshall  I  never  saw ;  Chancellor  Kent  I  never  saw  upon  the  bench,  al 
though  I  once  met  him  in  private  life.     But  when  I  name  Taney,  Story, 
Nelson,  and  Curtis,  as  among  the  judges  before  whom  it  has  been  more  or 
less  my  lot  to  appear,  and  recall  many  others  of  deserved  distinction  in 
different  States,  of  whom  I  have  had  personal  observation,  it  will  perhaps 
be  allowed  that  my  estimate  of  Shaw  as  a  judge,  unimportant  as  it  is  to  his 
fame,  has  not  been  formed  without  sufficient  opportunities  of  comparison 
with  men  of  note  and  mark.     There  have  doubtless  been  judges  who  would 
be  called  more  learned,  or  who  possessed  more  learning  in  special  depart 
ments  of  the  law ;   but  no  one  ever  knew  Chief  Justice  Shaw  to  fail  in 
the  knowledge  and  application  of  whatever  law  was  necessary  to  the  de 
cision  of  the  cause  on  which  he  had  to  act.     It  is  true  that  he  was  aided  by 
a  learned  bar,  whose  presentation  of  their  cases  was  habitually  thorough. 
But,  after  all  has  been  done  that  learned  advocates  can  do,  it  is  the  office 
of  the  judge  to  select,  to  weigh,  to  compare,  and  not  unfrequently,  before 
the  law  can  be  declared,  to  make  researches  which  counsel  have  not  made, 
or  to  draw  distinctions  which  they  have  not  drawn.     The  opinions  of  this 
eminent  person  have  always  been  received  in  the  courts  of  other  States  of 
this  Union,  and  in  the  Federal  Courts,  with  a  respect  that  has  not  been  less 
than  has  been  accorded  to  those  of  any  other  judge  who  has  held  a  place  in 
the  judicial  history  of  any  part  of  the  country. 


70  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1834. 

When  he  had  at  length  effected  the  change,  he  and  his 
wife  and  child  resided  for  some  time  with  my  mother  in 
Cambridge.  For  a  while,  he  rode  daily  on  horseback  into 
and  out  of  Boston  to  his  business,  for  the  sake  of  the  exer 
cise  ;  his  health  at  that  time  not  being  very  good.1 

1  This  seems  to  be  the  appropriate  place  to  correct  an  error  which  ap 
pears  in  the  recently  published  Memoirs  of  the  late  Hon.  Charles  Sumner. 
In  a  letter  written  by  Mr.  Sumner,  Oct.  24,  1832,  from  Cambridge,  to  his 
classmate  Charlemagne  Tower,  he  says  of  the  Harvard  class  of  1829: 
"  There  was  a  general  rising  against  the  Master's  degree.  Curtis,  by  far 
the  first  man  of  his  class,  with  the  highest  [sic]  legal  prospects  before  him* 
refused  it,  and  stirred  many  of  Ins  class  to  the  same  conclusion."  (Memoirs, 
&c.  of  Charles  Sumner,  vol.  i.  p.  116. )  This  was  entirely  a  mistake  on  the  part 
of  Mr.  Sumner.  At  that  time,  the  members  of  any  class  who  had  been  regu 
larly  graduated  for  three  years  were  entitled,  as  of  course,  to  receive  the 
degree  of  Master  of  Arts,  on  payment  of  a  certain  fee.  The  class  of  1829 
were  so  entitled  at  Commencement  in  the  year  1832.  The  members  resident 
in  Boston  and  the  neighborhood  held  a  meeting,  on  the  27th  of  August, 
to  make  a  respectful  protest  against  the  exaction  of  a  fee.  The  gentlemen 
who  were  active  in  that  proceeding  were  the  late  Hon.  George  T.  Davis, 
the  Rev.  Samuel  May,  George  W.  Phillips,  Esq.,  Charles  L.  Hancock,  Esq., 
and  some  others.  None  of  the  survivors  remember  or  believe  that  my 
brother  was  present.  Mr.  Hancock,  who  now  resides  in  Chicago,  is  positive 
that  he  was  not.  The  record  of  the  meeting,  kept  by  the  class  secretary, 
Mr.  May,  makes  no  mention  of  his  name.  To  this  I  can  add  my  strong 
conviction  that  my  brother  was  at  his  home,  in  Northfield,  in  August,  1832, 
and  was  much  occupied  with  his  business  and  his  admission  to  the  bar, 
which  took  place  during  that  month.  He  would  not  have  been  likely  to 
make  a  journey  to  Boston,  for  the  sake  of  stirring  up  his  classmates  about 
any  thing.  This  matter  is  of  no  great  importance,  to  be  sure,  but  accuracy 
is  always  desirable  even  in  trifles. 


1835.]  LETTERS  TO  MR.  TICKNOK.  71 


CHAPTER  IV. 

1834-1844. 

Removal  to  Boston.  —  Letters  to  Mr.  Ticknor  in  Europe.  —  Rapid  Rise  at 
the  Boston  Bar.  —  Character  as  an  Advocate.  — The  Case  of  the  Slave- 
child  Med.  —  Death  of  James  C.  Alvord,  and  Tribute  to  his  Memory.  — 
Extensive  Practice.  —  Statesmanlike  Qualities,  but  not  a  Politician.  — 
Rule  in  regard  to  Participation  in  Public  Affairs.  —  Article  on  Repudia 
tion  in  the  "North  American  Review."  —  Letter  from  Judge  Story. — 
Death  of  his  Wife.  —  Letters  to  Mr.  Ticknor  on  that  Event. 

MY  brother's  removal  to  Boston,  in  the  autumn  of  1834, 
was  soon  followed  by  the  absence  in  Europe  of  friends 
whose  interest  in  him  began  in  his  boyhood.  Mr.  Ticknor 
went  abroad  with  his  family  in  June,  1835,  and  remained 
absent  for  three  years.1  Before  I  enter  upon  the  profes 
sional  life  which  is  to  be  described  in  this  and  the  next  fol 
lowing  chapter,  it  may  be  well  to  give  the  letters  which  my 
brother  wrote  to  his  uncle  during  this  separation,  —  the 
longest  that  ever  happened  while  they  both  lived,  after  the 
younger  of  them  had  grown  to  manhood. 

To  MR.  TICKNOR. 

CAMBRIDGE,  Aug.  23,  1835. 

MY  DEAR  UNCLE  AND  AUNT,  —  We  were  truly  glad  to  learn 
from  Mrs.  Guild,  who  kindly  called  at  our  house  to  give  us  the 
news,  that  you  had  been  safely  landed  in  Liverpool ;  and  before 
this  letter  reaches  you,  I  suppose  even  the  recollection  of  the 
discomforts  of  your  voyage  will  have  faded  away  before  the  bright 
ness  of  your  present  agreeable  life. 

Many  things  have  occurred  here  to  interest  you,  and  some  to 
afflict  you,  since  you  left  us ;  but  of  all  these  you  have  heard  from 

1  Life  and  Letters  of  George  Ticknor,  vol.  i.  p.  402,  vol.  ii.  p.  183. 


72  MEMOIR   OF  BENJAMIN   BOBBINS   CUKTIS.  [1836. 

others  more  fully  than  I  can  tell  you.  I  can,  however,  and  I  do, 
offer  you  my  sincere  sympathy  for  the  loss  of  the  two  young  friends 
of  yours  who  have  died,  in  whom  you  felt  so  strong  an  interest. 

In  my  own  small  circle  at  home,  we  are  all  pretty  well.  .  .  . 

The  topic  which  engrosses  the  public  attention,  to  the  exclusion 
of  almost  every  other,  is  the  "  Antislavery  Society."  You  will  see 
by  the  newspapers,  which  I  suppose  you  receive,  that  a  great  meet 
ing  has  been  held  at  Faneuil  Hall  on  this  subject.  It  was  caused 
by  the  excitement  which  exists  through  all  the  slave-holding  States, 
in  consequence  of  the  efforts  of  that  Society  to  excite  the  slaves  to 
insurrection.  Dreadful  scenes  have  already  occurred  in  Mississippi. 
The  mob  have  hung  numerous  persons,  suspected  of  being  emissa 
ries  of  the  Society,  without  legal  trial ;  and  so  great  have  been  the 
commotions  excited  in  many  parts  of  the  South,  and  so  excited  is 
the  public  mind  there,  that  there  are  strong  fears  felt  here  by  the 
friends  of  the  Union  that,  unless  something  is  done  here  to  check 
the  Abolitionists,  and  convince  the  South  that  the  opinions  of  the 
great  body  of  the  people  of  the  Northern  States  are  unfavorable 
to  the  Society,  the  Union  will  not  continue  for  a  single  year.  All 
those  persons  in  the  Southern  States  who  are  enemies  to  the  Union 
have  seized  the  present  occasion,  and  are  endeavoring  to  do  their 
utmost  to  increase  the  excitement.  Some  idea  may  be  formed  of 
the  interest  felt  in  the  subject,  from  the  fact  that  numerous  South 
ern  gentlemen  came  from  all  parts  of  the  country  to  be  present  at 
the  meeting.  You  will  see  the  result  of  the  meeting  in  the  news 
papers  ;  and  we  are  all  glad  it  is  so  well  over.  Would  that  the 
whole  subject  could  be  as  easily  and  as  safely  disposed  of!  Mr. 
Sales  desired  me  to  tell  Mr.  Ticknor  that  he  had  several  sections 
reading  Don  Quixote,  for  he  said  he  knew  Mr.  Ticknor  would  be 
glad  to  hear  it.  ...  I  am  affectionately  yours, 

B.  R.  CURTIS. 

To  MR.  TICKNOR. 

BOSTON,  June  10,  1836. 

MY  DEAR  SIR,  —  I  do  not  make  any  apology  for  not  writing  to 
you  more  frequently,  because  I  believe  you  know,  and  will  make 
just  allowances  for  the  fact,  that  my  occupations  are  so  constant  and 
pressing  as  to  leave  me  exceeding  little  opportunity  to  write  letters. 
Of  late  this  has  been  more  than  commonly  the  case  ;  for  Mr.  C.  P. 
Curtis,  with  his  wife,  sister,  brother  Tom,  daughters,  and  Miss 


1836.]  LETTERS   TO   MR.  TICKNOR.  73 

Mary  Ann  Mason,  went  to  Niagara  Falls  the  first  of  June,  and 
will  not  return  till  some  time  in  July.  The  "  shop,"  therefore,  is 
on  my  shoulders  for  the  present,  and  I  have  not  a  great  deal  of 
time  to  spare.  I  cannot,  however,  suffer  your  last  kind  and  pleas 
ant  letter  to  go  longer  unanswered,  both  because  it  was  kind  and 
pleasant,  and  because  I  have  some  agreeable  news  to  give  you  in 
return,  which  I  imagine  will  be  unexpected.  It  is  that  we  have 
another  daughter,  now  three  days  old,  —  and  a  good  stout  little  lady 
she  is,  both  in  body  and  lungs,  —  and  Eliza  is  marvellously  well. 
She  sends  her  love  to  you,  but  is  not  quite  able  to  write.  The 
other  children  are  extremely  well,  grow  finely,  and  are  intelligent 
and  bright.  For  some  days  past  we  have  had  a  house  full.  .  .  . 

Your  friends,  I  believe,  are  all  well.  I  dined  with  Mr.  Guild 
a  few  days  since  at  Brookline ;  and  their  place  looked  delightfully 
green  and  cool  and  quiet,  though  the  wind  was  east  and  the  sky 
lowering.  I  do  not  think  there  is  any  news  in  the  political  world 
to  interest  you,  unless  it  be  that  the  Senate  by  a  very  large  vote,  and 
the  House  of  Representatives  by  one  equally  decided,  have  passed 
the  bill  to  distribute  the  surplus  revenue  among  the  States,  and  the 
country  is  all  expectation  as  to  the  action  of  the  President.  This 
is  Mr.,  Webster's  bill,  and  the  passage  of  the  law  is  considered  a 
great  triumph  by  all  the  friends  of  stability  and  good  order.  We 
have  wars  in  abundance ;  —  an  Indian  war  in  Florida,  in  which  the 
Indians  have  been  uniformly  victorious  throughout  the  campaign, 
which  closed  absolutely  without  effecting  any  thing ;  another  Indian 
war  in  Georgia,  excited  by  the  frauds  and  rapacity  of  the  whites,  — 
and  in  this,  too,  terrible  vengeance  has  already  been  taken  by  the 
Indians  for  the  cruel  and  faithless  treatment  which  they  have  expe 
rienced  at  the  hands  of  the  people  of  Georgia.  Many  towns  have 
been  burnt :  men,  women,  and  children  murdered,  negroes  and 
plantations  destroyed  and  robbed,  and  large  districts  wholly  de 
serted  by  their  inhabitants,  are  matters  which  now  daily  fill  the 
newspapers. 

Pray  give  my  love  to  Aunt,  and  tell  her  how  much  pleasure  it 
gives  me  to  learn  that  her  health  and  strength  are  increasing.     My 
love  to  Cousin  Anna,  and  desire  her  not  to  forget  me  or  any  of  the 
little  cousins  whom  we  shall  have  to  show  her  when  she  returns. 
Yours  truly, 

B.  R.  CURTIS. 


74  MEMOIR   OF  BENJAMIN  BOBBINS   CUKTIS.  [1836. 

To  MR.  TICKNOR. 

BOSTON,  February,  21,  1836. 

MY  DEAR  UNCLE  AND  AUNT,  —  Your  pleasant  letter  of  the 
22d  of  December  reached  us  two  days  since,  and  gave  us  great 
pleasure.  We  were  glad  to  know  that  you  had  lost  none  of  your 
kind  interest  in  us ;  we  were  glad  to  know  that  you  were  so 
pleasantly  fixed  for  the  winter,  and  that  you  were  all  well,  and 
likely  to  find  much  enjoyment  in  the  pleasant  things  with  which 
you  are  surrounded.  We  are  all  extremely  well,  arid  like  our  new 
home  very  much ;  and  while  I  arn  obliged  to  walk  four  times  eacli 
day  from  my  house  to  my  office,  you  need  entertain  no  fears  for  my 
wanting  exercise,  since  it  amounts  to  about  three  miles ;  for  we  live 
in  West  Cedar  Street,  a  great  way  off  from  almost  any  other  part 
of  the  town.  We  removed  from  Cambridge  in  October,  —  partly  be 
cause  I  'found  that  it  would  be  a  great  loss  of  time  and  strength  to 
have  my  house  three  miles  from  my  office  this  winter,  and  partly 
because  I  thought  we  were  a  great  deal  of  trouble  to  mother,  and 
her  family  would  go  on  more  comfortably  to  herself  without  us. 

We  see  her  frequently,  though  we  do  not  tempt  her  here  so  often 
as  I  could  wish.  Charlie,  whom  I  believe  she  loves  better  than 
anybody  else  in  the  world,  is  delighted  to  go  out  and  see  her,  which 
he  does  quite  often.  I  shall  leave  his  praises  entirely  to  his  mother, 
only  premising  that  his  cheeks  look  like  a  red  apple,  and  that  he  is 
nearly  as  round,  and  rolls  about  very  much  like  one. 

I  saw  Mr.  Stackpole  the  other  day,  and  he  told  me  that  he  met  you 
in  Dublin.1  He  has  come  to  Boston  with  the  avowed  intention  of 
becoming  a  lawyer,  although  he  says  everybody  is  determined  that 
he  shall  not  be  content  to  apply  himself  to  the  practice  of  that  pro 
fession,  because  he  has  been  so  long  abroad.  Judging  from  the 
specimen  we  have  in  our  office  (Lothrop  Motley2),  I  should  not  think 
that  a  foreign  University  was  a  good  place  to  acquire  a  love  of  the 
Common  Law.  Perhaps,  however,  there  will  be  no  Common  Law 
when  you  come  back ;  for  among  other  wild  theories  with  which 
the  Legislature  now  in  session  are  bitten  is  an  idea  of  codifying 
the  Common  Law.  You  remember  that  the  Statute  Law  of  the 
Commonwealth  was  undergoing  revision  when  you  left  Massa- 

1  The  late  Lewis  Stackpole. 

2  The  late  John  Lothrop  Motley,  the  historian,  was  at  this  time  a  student 
at  law  in  the  office  of  Messrs.  C.  P.  and  B.  B.  Curtis. 


1837.]  LETTERS   TO  MR.  TICKNOR.  75 

chusetts.  Having  got  well  through  with  that,  the  Legislature 
are  so  much  encouraged  that  many  of  them  imagine  that  the 
whole  body  of  the  law  may  now  be  reduced  to  a  pocket  volume,  so 
that  any  man  may  carry  about  with  him  his  own  lawyer.  It  does 
not  occur  to  them  that  a  good  system  of  law  must  be  at  the  same 
time  so  extensive  as  to  apply  to  and  govern  all  the  existing  rela 
tions  between  men  in  society ;  so  stable  and  fixed,  in  all  important 
principles,  as  to  furnish  a  certain  guide ;  and  so  flexible  as  to  be 
capable  of  adaptation  to  the  ever-changing  forms  into  which  property 
is  thrown  by  the  unwearied  enterprise  and  all-absorbing  love  of 
gain  which  distinguish  our  people.  With  the  exception  of  this 
scheme,  I  think  matters  are  going  on  well  in  Massachusetts.  Her 
people  hold  fast  to  their  integrity.  They  will  vote  for  Mr.  Webster 
for  President :  not  because  there  is  the  least  hope  of  his  being 
elected,  but  because  it  is  respectable  and  right.  The  great  body 
of  the  people  in  the  central  and  western  parts  of  the  State  are  en 
tirely  sound  on  this  subject.  To  use  the  language  of  one  who  was 
urged  to  give  his  vote  and  influence  to  Mr.  Van  Buren  because  he 
was  a  better  man  than  Judge  White,  arid  one  of  them  would  be 
elected,  "  Between  two  evils,  I  will  choose  n'ary  one :  I  shall  vote 
for  Mr.  Webster." 

Mr.  Everett  has  lost,  and  I  think  is  daily  losing  ground.  Peo 
ple  say  that  radicalism  has  got  into  the  Governor's  chair,  and  the 
popular  branch  of  the  Legislature  have  become  conservatives.  .  .  . 

Yours  truly, 

B.  R.  CURTIS. 

P.  S.  Mr.  T.  B.  Curtis  desires  me  to  say  that,  if  Mr.  Ticknor 
can  without  inconvenience  procure  and  send  him  a  copy  of  Cor- 
reggio's  Magdalene  from  the  Dresden  Gallery,  he  should  be  much 
obliged. 

To  MR.  TICKNOR. 

BOSTON,  May  14,  1837. 

MY  DEAR  UNCLE,  —  I  wrote  to  you  about  six  weeks  since, 
giving  you  an  account  of  the  res  angustce  which  pertain  to  me. 
Since  that  time,  we  have  changed  our  location,  and  are  now  board 
ing  in  the  country  for  the  health  of  the  children,  who  had  become 
quite  too  delicate  from  confinement  to  the  house,  and  want  of  fresh 
air  and  plenty  of  dirt,  both  which  they  are  now  enjoying  and 


76  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1837. 

thriving  by.  My  own  health,  too,  had  become  somewhat  reduced 
from  the  confinement  and  fatigue  which  I  have  been  constantly 
subjected  to  during  the  past  winter ;  and  as  the  state  of  affairs  here 
and  throughout  the  country  rendered  it  quite  important  to  me,  if 
not  to  others,  that  I  should  be  pretty  constantly  on  my  post,  and  I 
could  not  therefore  journey,  we  thought  it  best  to  leave  town  for 
the  summer.  We  board  at  a  large  house  which,  I  believe,  has 
been  erected  since  you  left  Boston,  at  South  Boston  Point.  It  is 
a  very  quiet,  well-ordered  house,  on  a  delightful  site,  with  a  few 
pleasant  people ;  and  I  can  ride  by  the  public  coaches,  or  walk,  to 
my  office  with  entire  convenience. 

I  have  referred  to  the  state  of  affairs  here  and  in  other  parts  of 
the  United  States :  it  is,  indeed,  most  gloomy.  That  has  taken 
place  which  never  before  happened  in  Boston.  On  Friday  last, 
every  bank  in  the  city  stopped  specie  payments.  This  was  pre 
ceded  by  the  failure  of  all  the  banks  of  the  city  of  New  York,  and 
has  been  followed  by  Philadelphia  and  Baltimore,  and  all  other 
places,  so  far  as  heard  from,  not  even  excepting  Mr.  Biddle's  bank, 
which  held  out  only  twenty-four  hours  after  the  other  banks  of 
Philadelphia  had  stopped.  We  are  thus  reduced  in  a  day  to  a  state 
of  universal  bankruptcy,  at  a  time  when  the  commercial  engagements 
of  the  country  are  vast  beyond  all  former  precedent. 

Before  this  event,  the  merchants  and  manufacturers  were  reduced 
almost  to  despair.  No  amount  of  wealth,  no  stability  of  credit,  seemed 
sufficient  to  prevent  the  bankruptcy  of  any  man  whose  engagements 
were  at  all  extended,  and  indeed  there  were  few  whose  engagements 
were  not  extended  ;  for  the  large  profits  which  have  been  constantly 
realized  from  almost  all  kinds  of  business  during  the  last  two  years 
had  drawn  the  most  prudent  into  large  speculations,  and  had  multi 
plied  to  a  great  extent  the  wants  of  all  borrowers  :  so  that,  for  the  last 
six  weeks,  New  York  especially,  and  Boston  and  the  other  cities  to 
a  great  amount,  have  seen  their  oldest  and  wealthiest  merchants 
sink  into  insolvency ;  and  I  have  no  doubt,  from  the  information 
which  I  possess,  —  and  lawyers,  you  know,  are  behind  the  scenes 
of  this  matter,  —  that  one  month  more  would  have  left  every  con 
siderable  merchant  in  Boston  connected  with  manufactures  a  bank 
rupt,  including  even  the  Lawrences.  The  resolution  of  the  banks 
not  to  redeem  their  bills  or  pay  their  depositors  in  specie  has,  of 
course,  afforded  a  temporary  relief  to  them.  The  banks  can,  and 
do,  now  discount.  Their  pressing  wants  are  supplied ;  and,  so  far 


1837.]  LETTEES   TO   MB.  TICKNOB.  77 

from  feeling  the  sad  calamity  which  has  come  upon  us,  the  'borrow 
ers  seem  to  be  almost  in  an  exulting,  and  certainly  are  in  a  very 
happy,  state  of  mind.  For  the  present,  they  are  much  the  largest 
class.  They  give  the  tone  to  popular  feeling  in  all  the  cities,  and 
public  meetings  have  been  held,  in  which  resolves  are  passed  ap 
proving  the  course  taken  by  the  banks,  agreeing  to  sustain  them, 
&c. ;  and  bills  now  pass  from  hand  to  hand  as  readily  as  when  they 
represented  (or  were  supposed  to  represent)  specie.  This,  how 
ever,  cannot  last  long.  Neither  comity,  nor  forbearance,  nor 
popular  feeling,  will  create  a  currency  any  more  than  cause  the 
lifeless  clay  to  perform  the  functions  and  render  the  services  of  a 
living  agent.  And  reflecting  men,  who  are  so  far  disinterested  and 
calm  as  to  be  able  to  think,  are  waiting  for  —  they  know  not  what. 
There  is  one  good,  however,  which  we  all  hope  to  bring  out  of  this 
body  of  evil ;  and  that  is,  to  sweep  from  the  offices  of  the  country 
the  ambitious,  selfish,  and  ignorant  men  who  now  carry  on  the 
government.  We  believe  this  will  be  done.  All  the  elections 
which  have  taken  place  confirm  our  hopes  that  the  mass  of  the 
people  will  be  taught  by  severe  suffering  the  extent  of  the  mistakes 
they  have  made,  and  will  be  wise  enough  to  confide  their  trusts  to 
safer  hands.  No  doubt  there  are  many  views  of  the  state  of  things 
now  existing  here  ;  and  perhaps  I  am  wrong,  and  all  will  be  well,  but 
I  cannot  think  so.  Give  my  love  to  Aunt  and  to  Nannie.  Eliza  sends 
her  love  to  you  all. 

Yours  truly,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

BOSTON,  Oct.  22,  1837. 

MY  DEAR  UNCLE, —  Since  I  wrote  to  you  (or  to  Aunt,  I  do  not 
remember  which,  and  in  point  of  law  at  least  it  is  immaterial) ,  we 
have  come  into  town,  and  are  now  in  a  very  good  house  on  the 
Mill-Dam,  which  you  may  have  known  as  occupied  by  Mr.  Picker 
ing,  and  which  the  fall  of  rents  and  my  own  increased  income 
brought  within  my  reach,  —  I  trust  without  exceeding  the  limits 
which  a  just  regard  to  the  future  prescribes.  The  third  year  of  my 
connection  with  Mr.  C.  P.  Curtis  expired  with  the  month  of 
September;  and  we  then  made  such  new  arrangements  as  will 
give  me  an  income  from  my  profession  sufficient  to  supply  all  the 
wants  of  myself  and  my  family,  numerous  as  its  members  are 
becoming,  and  to  enable  me  to  support  mother  in  a  comfortable 


78  MEMOIR   OF   BENJAMIN   ROBBINS   CURTIS.  [1837. 

independence.  .  .  .  She  boards  at  Cambridge  with  Mrs.  Holmes, 
staying  with  us  a  considerable  part  of  the  time  and  returning  there 
whenever  she  chooses ;  and  although  she  is  yet  hardly  accustomed 
to  her  new  mode  of  life,  and  has  had  one  or  two  pretty  severe 
attacks  of  illness,  yet  I  think  she  is  in  a  fair  way  to  spend  the 
remainder  of  a  life,  which  has  been  more  than  commonly  filled  with 
exertions  and  sacrifices  for  others,  in  peace  and  enjoyment.  Cer 
tainly  I  have  many  things  to  thank  Heaven  for,  but  for  none  more 
than  that  I  am  able  to  repay,  in  some  small  degree,  the  debt  which 
I  owe  to  her.  The  babies  are  all  well  and  thriving.  They  are 
healthy  and  bright  children ;  and  though  they  doubtless  give  their 
mother  some  cause  to  complain  of  the  labor  and  care  which  three 
such  active  and  noisy  youngsters  impose  upon  her,  to  me,  who  see 
them  only  for  a  short  time  every  day,  their  gayety  is  an  ever- 
renewed  source  of  happiness,  and  I  find  in  my  home  the  only,  and 
I  sometimes  think  insufficient,  protection  from  that  hardness  and 
dryness  of  mind  which  a  perpetual  contact  with  the  actual  affairs 
of  life,  and  a  constant  struggle  with  the  interests  and  passions  of 
men,  almost  inevitably  produce.  I  would  most  gladly  shake  off 
the  cares  and  thoughts  of  business  often,  if  it  were  in  my  power, 
and  find  relaxation  in  literature ;  but  I  cannot.  In  the  first  place, 
I  am  of  an  earnest  temperament,  and  can  do  nothing  wrell  without 
a  strong  devotion  of  my  mind  to  it.  In  the  next  place,  I  have  no 
dislike  to  the  practice  or  study  of  the  law,  nay,  I  believe  I  may 
say  without  affectation  that  I  have  a  strong  love  for  its  rough 
chances  ;  and  last,  but  most  important,  I  am  in  the  very  midst  of  the 
tide,  where  its  current  is  strongest  and  most  rapid,  and  nothing 
would  be  easier  than  to  be  thrown  out  into  comparatively  still 
water,  but  in  this  eager  community  of  the  bar  I  am  sure  I  should 
never  get  back  again.  It  has  been  truly  said,  that  a  lawyer  can  no 
more  regulate  the  amount  of  business  he  will  do,  than  an  engineer 
can  blow  a  barrel  of  gunpowder  half-way  down ;  so  I  think  of 
those  who  are  dependent  on  me,  and,  blessing  my  stars  for  my  good 
fortune,  rejoice  in  the  clients  who  make  me  work  so  hard,  but 
withal  pay  me  so  well.  Here  I  have  written  you  the  best  part  of 
the  sheet,  and  all  about  myself.  But  you  will  pardon  my  egotism,  on 
the  plea  that,  though  I  have  plenty  to  do,  I  have  little  to  say  about 
any  thing  else  which  would  be  in  the  least  interesting  to  you.  I 
learned  to-day  that  letters  from  you  in  Paris,  as  late  as  15th 
October,  were  in  town,  and  that  Aunt's  good  health,  which  gives  us 


1838.]  LETTERS   TO   MR.  TICKNOR.  79 

all  so  much  pleasure,  continued  unabated.  Pray  give  my  love  to 
her,  and  with  mine  Eliza's.  I  hope  the  winter  in  Paris  will  but 
confirm  what  the  last  year  has  effected,  and  that  we  shall  see  her 
(next  autumn  may  I  say)  so  well  as  to  prove  you  a  true  reporter. 
May  I  ask  of  you  the  favor  to  purchase  for  me  while  you  are  in 
Paris  a  copy  of  the  entire  works  of  Pothier.  I  have  not  at  hand 
the  catalogue,  which  would  give  me  the  title  of  the  best  edition  ;  but 
it  is  probably  the  latest,  and  is  the  only  one  which  has  a  full  verbal 
index.  I  presume  you  can  easily  ascertain  at  a  law  book-store. 
If  you  can  do  this  without  too  much  trouble,  and  let  it  come  with 
any  books  of  your  own  which  you  send  in  the  course  of  six  or  eight 
months,  you  will  oblige  me  much,  and  I  will  pay  the  cost  to  your 
agent  here.  You  will  of  course  purchase  a  copy  unbound.  The 
elections  have  gone  off  well.  Maine,  Rhode  Island,  Tennessee, 
New  Jersey,  thoroughly  revolutionized,  and  great  changes  elsewhere. 
The  country  has  suffered  dreadfully,  and  Congress  has  adjourned 
without  attempting  any  thing  to  relieve  the  people,  except  by 
granting  credits  on  duty  bonds,  which  is  only  a  submission  not  to 
ask  for  payment  of  those  who  could  not  pay. 

Yours  truly,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

BOSTON,  Jan.  14,  1838. 

MY  DEAR  UNCLE,  —  From  what  I  learned  from  Mr.  Savage 
some  time  ago,  I  suppose  you  have  but  little  personal  interest  in 
the  fate  of  any  banks  in  Boston ;  and  it  argues  well  for  your  fore 
sight,  and  is  extremely  well  for  your  fortune,  I  think,  that  it  is  so. 
On  Friday  last,  the  Commonwealth  Bank,  which  you  may  remem 
ber  had  a  capital  of  $500,000,  failed  and  blew  up  entirely.  You 
may  at  first  be  at  a  loss  to  know  how  a  bank  can  fail  in  a  city 
where  every  bank  pays  only  in  promises ;  but  then,  while  the  law 
holds  those  promises  to  be  binding,  and  is  ready  to  enforce  them, 
you  will  readily  perceive  that  there  may  be  a  difference  in  the 
value  of  promises ;  and  I  take  it  that  the  failure  of  this  bank  is 
nothing  more  than  a  confession  by  itself,  and  a  conviction  in  the 
public  mind,  that  its  promises  are  worth  nothing.  The  precise 
state  of  its  affairs  is  not  yet  known ;  but  the  Legislature  have 
appointed  a  committee  to  investigate  them,  of  which  Mr.  Samuel 
Hubbard  is  the  chairman,  and  Mr.  C.  P.  Curtis  is  one  of  the  mem- 


80  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1838. 

bers,  and  they  begin  their  examination  to-morrow.  This  is  the 
third  bank  which  has  broken  to  pieces  in  this  city,  and  they  have 
all  been  "  pet  banks,"  —  the  Commonwealth  Bank  the  chief  of  the 
"pets."  The  United  States  are  their  creditors  to  a  large  amount; 
and  the  debtors,  in  very  large  sums,  are  the  prominent  members  of 
the  Administration  party  in  Boston,  and  Isaac  Hill,  the  Governor 
of  New  Hampshire.  The  Commonwealth  Insurance  Company, 
also  belonging  chiefly  to  the  same  party,  has  gone  down  with  the 
bank.  It  happens  unfortunately,  I  think,  that  these  events  have 
happened  while  the  Legislature  is  in  session.  Every  bank  in  the 
Commonwealth,  by  reason  of  the  suspension  of  specie  payments,  is 
at  the  mercy  of  the  Legislature  ;  and  the  danger  is,  that,  under  the 
excitement  of  the  occasion,  they  may  deal  with  a  subject  which  is 
of  great  difficulty  and  of  the  first  importance  to  the  prosperity  of 
the  Commonwealth,  and  which  can  only  be  properly  handled  by 
wise  and  cautious  men.  These  events  have  caused  a  very  strong 
excitement  here,  and  the  unsoundness  of  three  or  four  other  banks 
in  Boston  is  more  than  suspected.  Of  political  events  there  is 
nothing  at  present  before  Congress  of  much  importance,  waiving 
that  question  which  threatens  so  much  the  peace  of  the  country, 
viz.  slavery.  I  believe,  however,  that  it  is  now  clear  that  the  sub 
ject  must  and  will  be  discussed  in  Congress,  not  this  winter,  per 
haps,  but  soon,  and  that  when  discussed  it  will  be  done  freely, 
perhaps  too  freely  by  the  Northern  members.  If  you  see  the 
debates,  you  will  notice  the  admirable  dexterity  with  which  Mr. 
Clay  is  keeping  himself  in  the  position  to  act  as  a  mediator  upon  this 
great  subject,  as  he  has  twice  before  done  on  other  questions  which 
threatened  a  dissolution  of  the  Union.  The  disturbances  in 
Canada  have  led  to  an  unpleasant  occurrence  on  the  Niagara  fron 
tier,  the  royal  troops  having  crossed  over  to  the  American  territory 
and  burned  a  steamboat  which  belonged  to  our  citizens,  and  killed 
several  people  who  were  on  board,  —  an  attack  which  was  undoubt 
edly  provoked  by  the  use  which  had  been  made  of  the  boat  to  con 
vey  men  and  military  stores  to  Navy  Island  in  the  Niagara  River, 
where  a  body  of  insurgents  were,  and  still  are,  in  arms  against  the 
government  of  the  Queen,  though  this  cannot  justify  a  hostile  inva 
sion  of  our  territory.  No  one  doubts  that  the  English  govern 
ment  will  do  all  that  is  proper  on  such  an  occasion,  and  that  it  will 
pass  away  without  leading  to  further  collisions.  The  President 
has  ordered  out  a  body  of  militia,  drawn  from  places  remote  from 


1838.]  LETTERS   TO   MR.  TICKNOR.  81 

the  scene  of  war,  under  command  of  General  Scott,  with  the  osten 
sible  object  of  protecting  the  frontier,  but  probably  for  the  purpose 
of  restraining  the  New-Yorkers  from  taking  part  in  the  war  in 
Canada.  Mr.  George  Bancroft,  being  eminently  a  practical  man 
and  extremely  well  versed  in  mercantile  affairs,  has  been  appointed, 
by  the  President,  Collector  of  the  Port  of  Boston,  vice  Mr.  Hen- 
shaw  resigned.  You  may  be  sure  that  this  is  agreeable  to  the 
merchants. 

We  heard  from  Mr.  Guild  the  other  day,  that  we  might  expect 
to  see  you  at  home  in  the  course  of  the  coming  summer,  and  so  far 
as  we  are  concerned  this  was  the  last  news  we  had  heard  of  you 
since  you  went  away.  Please  to  give  my  love  and  Eliza's  to  Aunt 
and  Anna,  and  tell  Aunt  we  laughed  heartily  over  her  last  letter, 
which  described  the  great  advances  in  age  made  by  all  of  you  since 
you  left  the  country.  Eliza  and  the  children  are  well,  and  have 
been  so  through  the  winter.  Mother  has  been  with  us  for  a  few 
weeks,  but  has  now  returned  to  Cambridge. 

Yours  truly,         B.  R.  CURTIS. 


To  MR.  TICKNOR. 

BOSTON,  Feb.  11,  1838. 

MY  DEAR  UNCLE,  —  I  return  my  sincere  thanks  for  your  wel 
come  present  of  the  works  of  Pothier.  They  have  not  yet  arrived, 
but  I  have  learned  that  they  were  on  the  way  from  your  kind  letter 
of  the  28th  of  December.  It  is  not,  however,  for  the  purpose  of 
thanking  you  for  the  books  that  I  so  soon  write  to  you  again.— 
having  sent  a  letter  to  Mr.  Savage  not  more  than  two  weeks  ngo, — 
but  to  tell  you  and  Aunt  that  another  son  was  born  to  us  on  Satur 
day  last,  and  that  Eliza  is  doing  well.  We  have  now  two  boys 
and  two  girls,  all  healthy  and  good  children,  the  youngest  not  ex- 
cepted,  for  it  sleeps  all  the  time  and  troubles  nobody  ;  and  when 
you  come  home  next  autumn,  if  God  spares  all  their  lives,  you  will 
say  they  are  a  funny  sight. 

Matters  are  going  on  here  much  as  when  I  last  wrote  to  you. 
A  few  more  banks  have  failed,  and  the  common  impression  is  that 
some  three  or  four  more  must  be  disposed  of  in  some  way  before 
the  community  will  be  safe.  Within  the  last  fortnight  there  lias 
been  some  improvement  in  the  currency,  inasmuch  as  before  that 
time  it  was  difficult  to  get  a  bank-note  which  could  be  safely  kept  for 


82  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1836. 

twenty -four  hours ;  but  now  the  notes  of  the  sounder  banks  are  in 
circulation.  Still,  all  things  in  the  money  world  are  but  little 
removed  from  a  state  of  chaos.  .  .  . 

While  I  write,  it  is  snowing  in  that  deliberate  and  cautious  way 
in  which  all  good  snow-storms  begin,  and  it  is  the  first  good  snow 
storm  we  have  had  this  winter.  With  the  exception  of  a  slight  fall 
of  snow  in  November,  the  ground  has  been  wholly  uncovered,  and 
hardly  a  sleigh  has  been  visible.  Indeed,  we  have  had  no  winter. 
Mother  is  with  us  for  a  visit.  She  is  well,  except  some  touches  of 
rheumatism.  Give  my  love  and  Eliza's  to  Aunt  and  Cousin  Anna, 
and  believe  me  to  be 

Yours  truly,  B.  R.  CURTIS 

A  period  of  seventeen  years'  residence  and  practice  in 
Boston,  from  the  age  of  twenty-five  to  forty-two,  now  claims 
the  reader's  attention.  The  impression  which  my  brother 
made  upon  the  bar  of  that  city,  and  upon  its  leading  and 
thoughtful  citizens,  was  immediate  and  strong. 

The  Boston  bar  was  then  led  by  men  of  great  learning  and 
ability,  among  the  foremost  of  whom  he  soon  vindicated  for 
himself  a  place.  His  rise  to  that  place  was  rapid,  but  every 
step  was  made  good  by  the  sure  and  steady  development  of 
his  powers.  As  successive  opportunities  for  the  employment 
of  his  professional  talents  arose,  he  gave  proof  that  he  was 
fitted  for  the  occasion  and  equal  to  its  utmost  demands. 
Yet  there  was  no  straining  for  meretricious  effect  ;  no 
ambitious  struggling  for  distinction.  It  was  very  early 
seen  that  his  character  was  one  of  great  weight,  from  his 
simple  earnestness,  his  aim  to  do  faithfully  the  duty  of  the 
day  without  looking  for  applause,  and  his  peculiarly  elevated 
moral  tone.  Scarcely  any  man  has  become  a  distinguished 
advocate,  who  was  less  prone  to  exaggeration,  less  relied 
upon  the  force  of  mere  rhetoric,  or  thought  less  of  any  thing 
but  the  solid  merits  of  his  cause. 

His  means  of  producing  conviction,  whether  with  a  court 
or  a  jury,  were  plainness,  conciseness,  and  accuracy.  He 
was  persuasive,  because  of  his  rejection  of  all  superfluous 


1836.]  CHARACTER   AS   AN   ADVOCATE.  83 

and  irrelevant  matter,  and  because  it  was  known  that  he 
disdained  all  the  mere  devices  of  speech.  Mr.  Webster 
said  of  him,  that  "  his  great  mental  characteristic  is  clear 
ness  ;  and  the  power  of  clear  statement  is  the  great  power 
at  the  bar." 1  This  power  of  lucid  and  exact  statement, 
observed  by  all  his  contemporaries,  was  united  with  the 
power  of  close,  logical,  and  sustained  reasoning.  There 
have  been  very  prominent  advocates,  who,  when  they  have 
stated  their  case,  have  done  all  they  can  for  it ;  and  when 
this  gift  has  risen  to  a  high  accomplishment,  it  has  been 
of  great  value.  But  in  Mr.  Curtis  it  was  accompanied  by 
another  power  of  equal  importance,  —  the  power  of  argu 
ment,  which  should  come  into  play  after  the  groundwork 
for  reasoning  has  been  laid.  When  he  had  stated  his  case, 
he  had  not  done  with  it,  unless  the  statement  was  all  that 
was  needful  to  lead  the  tribunal  to  the  desired  decision. 
When  more  was  requisite,  his  propositions  followed  each 
other  in  their  appropriate  order,  and  were  enforced  by  a 
method  of  reasoning  which  was  pure  deduction  from  wrell- 
chosen  premises  to  just  conclusions,  without  a  needless 
accumulation  of  ideas. 

With  the  gifts  of  what  is  sometimes  called  eloquence,  he 
was  not  endowed  by  nature  or  cultivation.  Those  who 
took  pleasure  in  listening  to  him  at  the  bar  derived  their  en 
joyment  from  the  lucid  and  unimpassioned  character  of  his 
discourse.  This  is  an  enjoyment  which  all  minds  can  feel, 
when  there  is  the  requisite  intelligence  to  appreciate  such  a 
treatment  of  a  subject  by  one  who  deals  with  it  without 
prolixity,  and  with  a  sufficient  exhibition  of  its  essential 
truths.  This  enjoyment  was  felt  in  listening  to  Mi-.  Curtis, 
by  the  unlettered  as  well  as  the  lettered  of  his  hearers,  by 
jurors  as  well  as  by  judges.  Yet,  although  he  always  had 
his  feelings  under  control,  he  had  very  deep  feelings ;  and 
he  sometimes,  with  great  simplicity  and  with  an  imagery 
that  was  all  the  more  effective  because  it  was  never  forced, 

1  This  was  written  in  1849. 


84  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1834 

and  was  but  a  momentary  deviation  from  the  steady  march 
of  his  mind,  touched  the  feelings  of  others  while  he  was 
addressing  their  reason.  But  on  such  occasions  he  used  no 
art,  for  he  said  nothing  that  he  would  not  have  said  to  him 
self  in  his  private  meditations.  To  the  passions  or  preju 
dices  of  men  he  never  appealed.  His  mind  was  too  honest, 
his  strength  was  too  real,  to  allow  him  to  employ  a  weakness 
in  others  which  he  knew  should  not  be  allowed  to  govern 
them.  He  spoke  directly  to  the  judgments  of  those  whose 
convictions  he  was  to  gain,  putting  his  mind  into  contact 
with  theirs,  on  an  equality  of  condition,  without  assuming 
the  superiority  that  is  implied  in  efforts  to  mislead  through 
the  ignorance,  the  failings,  or  the  peculiarities  of  men. 

Such  were  the  intellectual  and  moral  traits  of  the  young 
man  who  began  in  1834  a  professional  career  that  was  to  be 
marked  by  extraordinary  success,  and  that  was  recognized 
as  an  uncommon  one,  among  a  people  proverbially  intelligent, 
observing,  and  critical.  The  practice  on  which  he  entered 
in  Boston  led  him  at  once  into  fields  of  the  law  that  were 
then  new  to  him.  It  obliged  him  to  master  the  maritime 
law  in  all  its  branches,  and  the  peculiarities  of  the  admi 
ralty  jurisdiction  and  procedure.  It  made  him  familiar  with 
the  patent  law,  for  which  his  mental  characteristics  gave 
him  a  singular  adaptation.  Equity  jurisprudence  and  its 
distinctive  system  of  pleading  were  opened  to  him  by  his 
engagements  in  the  Circuit  Court  of  the  United  States. 
Whatever  of  the  commercial  law  is  in  active  operation  in 
a  commercial  community  was  necessarily  a  part  of  his 
studies  and  of  his  daily  employment.  The  law  of  real 
property  and  of  wills  and  testaments  was  no  less  a  part  of 
his  needful  acquisitions  ;  and  in  constitutional  law  and  the 
law  of  nations,  he  not  only  prosecuted  new  studies,  but  he 
sometimes  had  practical  use  for  them.  Nor  was  he  with 
out  occasion  to  know  and  apply  the  system  of  revenue 
law  which  is  in  operation  in  all  the  ports  of  the  United 
States.  In  short,  whatever  learning  an  American  lawyer, 


18.T6.]  CASE   OF   THE    SLAVE   MED.  85 

who  is  botli  a  chamber  counsel  and  an  advocate,  needs  to 
have,  in  a  wealthy,  prosperous,  and  active  community,  of 
diversified  occupations,  he  acquired,  and  was  constantly  em 
ployed  in  using,  during  this  period  of  his  life.  He  did  not 
attain  the  kind  of  eminence  that  comes  from  a  speciality  of 
practice.  The  character  of  his  mind  and  the  requirements 
of  his  daily  avocations  made  him  equally  eminent  in  all 
the  civil  departments  of  the  law,  while  his  studies  in  all  of 
them  kept  pace  with  the  demands  that  were  made  upon 
him.1 

The  professional  reader  may  perhaps  look  for  an  account 
of  some  particular  case  which  first  brought  this  distin 
guished  lawyer  into  notice  in  his  newly  chosen  sphere,  and 
secured  his  success.  We  read,  in  the  lives  of  several 
great  lawyers,  of  some  occasion  happily  availed  of  for  the 
display  of  powers  until  then  unknown,  and  which  has  been 
the  stepping-stone  to  the  subsequent  career;  which  is  looked 
back  upon  in  after  years  with  honest  pride  and  related  cir 
cumstantially  by  biographers  and  fiieiids.2  In  the  profes 
sional  life  of  Mr.  Curtis,  there  is  no  such  case  to  be  referred 
to  ;  no  fortunate  supply  by  a  junior  of  the  shortcomings  or 
absence  of  a  senior ;  no  lucky  hit,  attracting  the  sudden 
attention  of  those  who  are  on  the  watch  for  talent  and 
power.  It  is  not  remembered  that,  in  the  earlier  years 
of  his  career  at  the  Boston  bar,  there  was  a  single  occasion 
out  of  which  he  can  be  said  to  have  a  made  his  fortune." 
This  was  partly  because  he  came  there  to  take  part  in  an 
established  business ;  but  it  was  mainly  because  of  the 
uniform  merit  of  his  efforts  and  the  early  maturity  of  his 
mind. 

Yet   I   may  here  refer  to  a  case   in   which  he   made  a 

1  He  did  not  practise  in  criminal  cases  ;  but  when  he  came  to  the  bench 
it  was  found  that  his  knowledge  of  criminal  law  was  not  inferior  to  his 
other  acquirements. 

2  "  Young  man,  your  bread  and  butter  is  cut  for  life,"  a  solicitor  said  to 
John  Scott  (Lord  Eldon),  as  the  latter  was  leaving  Westminster  Hall  after 
his  argument  in  Ackroyd  v.  Smith. 


86  MEMOIR   OF   BENJAMIN   BOBBINS  CUETIS.  [1836. 

remarkable  argument,  in  the  year  1836,  when  he  had  been 
at  the  Boston  bar  not  more  than  two  years  ;  and  I  refer  to 
it  on  account  of  the  character  of  the  question,  and  because 
the  argument  affords  a  good  illustration  of  his  power  at  an 
early  age  to  deal  with  a  difficult  subject  in  the  conflict  of 
laws,  growing  out  of  the  differing  public  policy  of  different 
States  of  this  Union.  A  lady  whose  domicile  was  in  New 
Orleans  came  to  Boston  on  a  visit  to  her  father,  bringing 
with  her  her  own  female  child  of  tender  years,  and,  as  a 
companion  to  that  child,  a  colored  child  of  the  same  age, 
who  was  the  daughter  of  one  of  her  husband's  female  slaves, 
and  who  was,  by  the  law  of  Louisiana,  also  the  slave  of  the 
husband.  A  writ  of  habeas  corpus  was  sued  out,  by  persons 
who  felt  interested  to  put  an  end  to  all  restraint  of  this 
slave-child  within  the  limits  of  Massachusetts,  and  in  order 
to  have  her  declared  free.  The  father  of  the  lady,  in 
whose  house  the  colored  child  was  temporarily  resident  and 
suitably  cared  for,  made  return  on  the  writ,  setting  forth 
the  facts,  and  claiming  that,  as  agent  of  her  husband,  his 
daughter  had  a  right,  and  intended,  to  return  the  child 
to  Louisiana,  by  the  laws  of  which  State  she  was  a  slave  ; 
and  that  no  other  restraint  was  exercised  over  her  in  Mas 
sachusetts  than  such  as  was  necessary  for  her  health  and 
safety,  and  for  her  return  to  the  domicile  of  her  owner.  The 
writ  was  made  returnable  before  one  of  the  judges  of  the 
Supreme  Court  of  Massachusetts,  in  vacation,  and  was  then 
adjourned  into  court  and  argued  before  Chief  Justice  ShaAV 
and  a  full  bench.  Had  this  case  occurred  at  a  later  period 
in  the  sectional  conflict  on  the  subject  of  slavery,  it  would 
doubtless  have  been  made  the  occasion  of  much  excitement 
and  comment.  As  it  was,  it  could  be  discussed  and  decided 
calmly  and  rationally,  and  the  determination  of  the  question 
could  pass  into  the  juridical  history  of  the  country,  to  stand 
as  an  important  precedent  in  reference  to  the  inter-state  rela 
tions  of  the  different  members  of  this  Union,  upon  the  points 
involved  in  the  decision.  There  was  no  political  motive 


1836.]  CASE   OF   THE    SLAVE   MED.  87 

whatever,  on  the  part  of  the  respondent  or  his  daughter,  in 
asserting  her  right,  as  her  husband's  agent,  to  restrain  the 
child.  They  desired  only  to  discharge  their  duty  to  the 
child,  and  to  her  mother,  who  had  remained  behind  in  New 
Orleans.  At  the  argument,  Mr.  Curtis  maintained  for  the 
respondent  the  following  proposition  :  — 

That  a  citizen  of  a  slave-holding  State,  who  comes  to  Massa 
chusetts  for  a  temporary  purpose  of  business  or  pleasure,  and 
brings  his  slave  as  a  personal  attendant  on  his  journey,  may 
restrain  the  slave  for  the  purpose  of  carrying  him  out  of  Massa 
chusetts  and  returning  him  to  the  domicile  of  his  owner. 

The  question  was  confessedly  new.  For,  whatever  might 
be  the  law  of  England,  as  declared  by  Lord  Mansfield  in 
Somersett's  case,  it  was  obvious  that  the  relations  of  the 
different  States  of  this  Union  involved  other  considerations  ; 
that  comity  between  two  American  States,  in  giving  effect  to 
each  other's  laws  of  personal  relations,  might  require  a  court 
in  Massachusetts  to  allow  the  qualified  exercise  of  the  mas 
ter's  right  that  was  here  claimed  ;  while  in  Somersett's 
case  the  master  was  a  British  subject,  resident  in  Virginia 
when  it  was  a  British  colony.  Mr.  Curtis,  therefore, 
directed  his  argument  mainly  to  the  distinction  between  the 
comity  which  an  English  court  could  show  towards  the 
local  law  of  one  of  her  colonies  when  conflicting  with 
the  common  law  of  England,  and  the  comity  which  a 
Massachusetts  court  may  and  ought  to  show  towards  the 
local  law  of  Louisiana,  which  fixes  the  personal  rights  of  its 
citizens,  although  that  law  is  itself  in  conflict  with  the  pub 
lic  policy  of  Massachusetts  in  respect  to  her  own  citizens. 
Such  a  discussion  necessarily  involved  the  sense  in  which 
slavery  was  to  be  regarded  as  immoral  in  a  court  of  law ; 
whether  it  is  prohibited  by  the  law  of  nations  ;  whether, 
although  contrary  to  natural  right,  it  is  not,  when  recog 
nized  by  the  local  law  of  an  American  State,  a  relation 
between  persons  to  which  some  effect  must  be  given  in  the 


88  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1836. 

courts  of  other  States ;  and  whether  it  could  in  truth  work 
any  injury  to  the  public  policy  of  Massachusetts  to  allow 
of  so  much  recognition  of  that  relation  as  to  admit  of  the 
exercise  of  the  qualified  restraint  claimed  in  this  case. 
Whatever  learning  could  throw  light  upon  these  topics 
found  its  appropriate  place  in  a  massive  and  impressive 
argument,  which,  although  made  by  a  young  man  of 
seven  and  twenty,  was  regarded  by  the  eminent  Chief 
Justice  as  one  calling  for  a  careful  judicial  answer,  step 
by  step.1 

The  decision  pronounced  by  the  Chief  Justice,  and  con 
curred  in  by  all  the  judges,  negatived  the  proposition  main 
tained  by  Mr.  Curtis.  It  held  that  the  maxim  that  the 
right  of  personal  property  follows  the  person  of  the  owner 
is  to  be  limited  to  those  commodities  that  are  everywhere 
and  by  all  nations  treated  as  and  deemed  subjects  of  prop 
erty,  which  is  not  true  of  property  in  slaves ;  that  the  local 
laws  which  recognize  property  in  slaves,  while  they  operate 
within  their  own  jurisdiction  to  give  to  the  subject  the  in 
cidents  of  property,  and  apply  to  it  the  same  rules  that 
govern  other  species  of  personalty,  cannot  operate  proprio 
vigor e  out  of  that  jurisdiction  ;  that  the  rule  of  comity  does 
not  require  a  State  to  give  to  the  laAVS  of  another  State  an 
operation  within  its  territory  which  is  inconsistent  with  its 
own  public  policy  and  legislation ;  that  to  allow  of  the  tem 
porary  and  qualified  restraint  asked  for  in  this  case  would 
lead  logically  to  the  exercise  in  Massachusetts  of  other 
rights  of  the  master  given  by  the  local  law  of  his  domicile  ; 
and  that,  as  slavery  was  a  condition  unknown  in  Massachu- 

1  The  argument  in  support  of  the  writ  was  made  with  great  ability  and 
learning  by  the  late  Mr.  Ellis  Gray  Loring.  Mr.  Choate  was  on  the  same 
side,  but  he  did  not  add  much  to  Mr.  Loring's  argument.  The  case  is  re 
ported  in  the  eighteenth  volume  of  Pickering's  Reports,  at  page  103,  under 
the  name  of  Commonwealth  v.  A  res.  The  report  does  but  scant  justice  to 
the  arguments  of  Mr.  Curtis  and  Mr.  Loring.  I  heard  them  both.  There 
was  a  full  and  accurate  report  published  at  the  time  in  a  pamphlet.  From 
this  the  editor  has  taken  his  father's  argument  for  insertion  in  the  second 
volume. 


1836.]  CHARACTEKISTIC   ANECDOTE.  89 

setts,  and  repugnant  to  its  Constitution  and  laws,  the  right 
of  property  founded  upon  the  local  law  of  States  where 
slavery  exists  could  not  be  exercised  in  that  Commonwealth. 
The  opinion  made  a  broad  distinction  between  the  right 
secured  by  the  Constitution  of  the  United  States  to  recap 
ture  a  slave  who  had  escaped  from  a  slave  into  a  free  State, 
and  the  right  of  the  master  who  voluntarily  brings  his  slave 
within  the  territory  of  a  State  where  slavery  is  prohibited. 

The  practical  and  direct  importance  of  these  questions, 
in  reference  to  the  condition  of  servitude,  has  passed  away. 
But  in  the  personal  history  of  one  who  twenty  years  after 
ward  had  to  act  upon  them  judicially,  it  is  interesting  to 
note  how  he  had  sounded  some  of  their  depths  at  this  early 
period  in  his  life ;  and  how  this  subject  connects  itself  with 
that  great  topic  which  became  the  occasion  of  his  crowning 
judicial  distinction.  At  the  time  of  this  quiet  but  search 
ing  forensic  discussion  in  Boston,  that  portentous  claim  to 
the  extra-territorial  operation  of  the  law  of  property  in 
slaves,  which  was  afterwards  advanced,  had  not  reached  the 
proportions  which  it  subsequently  assumed  in  its  political 
and  judicial  aspects  ;  and  it  had  attracted  but  little  atten 
tion  compared  with  the  intense  interest  that  it  was  destined 
thereafter  to  excite  all  over  the  country.  But  the  reader 
who  is  curious  to  trace  the  progress  of  an  individual  mind 
may  find,  in  the  celebrated  dissenting  opinion  in  the  case 
of  Dred  Scott,  how  well  its  writer  was  prepared  for  the  de 
mands  of  that  occasion,  and  how  much  further  and  with 
what  more  forcible  and  ample  illustration  he  then  carried 
the  doctrine  incidentally  touched  by  the  clear  and  vigorous 
mind  of  Shaw. 

An  anecdote,  which  has  been  told  by  Dr.  Robbins,  may 
be  transferred  to  these  pages,  because  it  illustrates  a  well- 
known  trait  in  my  brother's  character,  arid  relates  to  the 
period  covered  by  the  present  chapter :  — 

I  remember  that,  a  great  many  years  ago,  the  late  Governor 
Kent  of  Maine  told  me  that,  having  heard  that  Mr.  Webster  was 


90  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1839 

about  to  argue  a  case  at  Portland,  he  went  from  Bangor  to  hear 
him.  One  of  the  opposing  counsel  was  Mr.  Curtis,  then  a  young 
man,  whose  fame  had  hardly  reached  beyond  his  native  State. 
After  Mr.  Webster  had  finished  his  plea,  of  course  powerful  and 
eloquent,  Mr.  Curtis,  in  rising  to  reply,  made  no  allusion  to  his 
mighty  antagonist  any  more  than  if  he  had  been  of  no  reputation  ; 
but  with  perfect  composure  entered  upon  the  merits  of  the  case, 
and  argued  it  in  a  masterly  manner.  "  I  was  greatly  impressed," 
said  Mr.  Kent,  "  by  this  remarkable  instance  of  manly  self-respect, 
and  honest  reliance  on  the  justice  of  his  cause,  in  so  young  a  man, 
and  at  that  moment  recognized  in  him  the  genuine  marks  of 
greatness."  l 

When  he  had  been  a  resident  in  Boston  for  about  five 
years,  he  lost  the  most  intimate  friend  of  his  early  manhood, 
to  whom  I  have  already  alluded,  —  James  C.  Alvord  of 
Greenfield.  I  can  hardly  dare  to  trust  my  pen  in  an  at 
tempt  to  describe  this  distinguished  young  man,  for  the  num 
ber  of  my  readers  who  can  test  by  their  memories  the  truth 
of  my  description  is  necessarily  small.  When  the  broken 
column  that  typifies  an  unfinished  career  stands  to  remind 
us  of  one  with  whom  we  began  the  journey  of  life,  —  one  to 
whom  we  look  back  through  the  long  vista  of  years  that  are 
crowded  with  events  and  scenes  and  persons  in  which  he  is 
not  associated,  but  among  which  we  have  ever  missed  him, 
ever  thought  of  what  he  would  have  done,  of  what  would 
have  been  his  impress  upon  the  age,  of  what  a  part  he  must 
have  played  upon  the  theatre  from  which  he  was  snatched 
by  an  early  death,  —  we  are  too  apt  perhaps  to  feel  that 
nothing  has  filled  the  void,  that  all  comparison  is  vain.  We 
carry  our  early  estimate  of  a  long-lost  friend,  uncorrected  by 
our  riper  experience  and  wider  observation,  to  the  end  of 
our  own  pilgrimage;  and  at  every  stage  of  it  we  are  too 
prone  to  exclaim,  — 

"For  Lycidas  is  dead,  dead  ere  his  prime, 

and  hath  not  left  his  peer." 

l  Dr.  Robbing's  Memoir  of  the  Hon.  B.  R.  Curtis,  pp.  16,  17. 


1839.]  JAMES  C.  ALVOKD.  91 

Yet  I  must  here  express  my  conviction  that  the  State  of 
Massachusetts  never  lost,  at  so  early  an  age,  a  citizen  of 
greater  hope  and  promise  of  useful  distinction,  than  she  lost 
in  Alvord.  As  a  lawyer,  he  was  the  equal  of  his  friend 
Curtis  in  learning  and  in  logical  power.  But  they  differed 
remarkably  and  obviously  in  another  respect.  There  was 
an  energy  of  enthusiasm  in  Alvord  which  bore  down  all 
opposition,  while  it  won  the  sympathy  and  admiration  even 
of  those  who  felt  his  blows.  If  he  had  had  less  intellectual 
strength,  his  zeal  would  have  carried  him  where  mere  ardor 
and  earnestness  become  of  little  value  or  effect.  But  in 
him  the  fire  of  enthusiasm  burned  in  an  intellect  of  the  high 
est  order,  kindling  without  consuming  his  reasoning  faculty. 
In  this  he  was  a  strong  contrast  to  his  friend,  whose  mind 
and  character  derived  none  of  their  power  from  an  ardent 
temperament,  or  any  impetuosity  of  the  moral  feelings.  In 
Curtis,  the  moral  sentiments  and  convictions  were  very 
strong  ;  but  they  lay  deep  beneath  the  surface,  forming,  like 
conscience,  the  unseen  and  silent  guide  of  life.  In  Alvord, 
they  were  equally  strong  and  sincere  ;  but  they  were  worn 
like  the  armor  of  a  champion,  which  does  hardy  service  in 
the  fight. 

Two  men  so  differently  constituted,  yet  of  such  equal  intel 
lectual  gifts,  bound  together  by  an  affection  surpassing  that 
of  brothers,  necessarily  modified  each  other  in  some  degree. 
Alvord  had  a  strong  propensity  to  public  life,  and  a  large 
capacity  for  it.  He  was  an  impressive  and  captivating 
speaker  in  public  assemblies,  and  he  possessed  a  fine  tact  in 
dealing  with  masses  of  men,  especially  in  matters  of  legisla 
tion  and  public  policy.  Curtis  was  acted  upon  by  the 
warmth  of  his  friend's  nature,  as  the  bodily  frame  which 
needs  more  heat  than  it  can  supply  to  itself  is  acted  upon 
by  an  external  source.1  The  one  of  these  men  was  formed 

1  One  who  has  survived  Mr.  Alvord  for  forty  years,  and  who  was  united 
to  him  in  her  early  days  by  the  closest  of  all  ties,  has  recently  said,  in  a 
letter  to  my  nephew,  the  editor  of  this  work  :  "  Mr.  Alvord's  magnetic 
enthusiasm  acted  upon  the  natural  reserve  of  your  father  like  sunlight." 


92  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1839. 

to  be  a  great  judge :  the  other  was  destined  to  become  a 
statesman.  One  lived  to  become  what  he  was  fitted  by 
taste  and  temperament  to  be :  the  other  was  cut  off  on  the 
threshold  of  a  public  career  that  promised  to  be  singularly 
brilliant,  before  his  strong  and  noble  character  had  become 
known  beyond  his  native  State.  The  survivor  paid  the  fol 
lowing  tribute  to  the  memory  of  his  friend,  and  went  on 
his  way,  feeling  that  he  should  never  look  upon  the  like 
of  him  whom  he  had  lost. 

JAMES  C.  ALVORD. 

Died,  at  Greenfield,  on  the  morning  of  the  27th  of  September 
[1839],  James  C.  Alvord,  aged  thirty -one  years. 

Many  can  bear  witness  that  in  his  death  the  Commonwealth  has 
sustained  a  serious  loss,  —  such  a  loss  as  should  not  be  passed  by 
without  some  notice  of  its  magnitude,  and  some  passing  tribute  to 
his  talents  and  character. 

Mr.  Alvord  graduated  at  Dartmouth  College  in  August,  1827, 
having  held,  throughout  his  collegiate  course,  a  high  rank  in  his 
class,  and  having  acquired  a  frank,  generous,  and  manly  character. 
He  may  be  said  to  have  had  an  hereditary  attachment  to  the  science 
and  practice  of  the  law ;  for  his  father  and  another  near  relative 
had  studied  the  law  with  a  strong  love  for  the  science,  and  had 
practised  it  with  much  success,  and  from  early  life  he  had  been  in 
the  midst  of  scenes  which  gave  his  mind  a  decided  bent  towards 
that  profession.  On  leaving  college,  he  entered  the  Law  School 
at  New  Haven,  arid  there,  under  the  wise  guidance  of  the  two  emi 
nent  lawyers  who  presided  over  that  school,  he  continued  for  two 
years,  when  he  was  called  to  the  bar  in  his  native  county.  For 
a  few  months  he  devoted  his  time  to  the  practice  of  the  law,  under 
circumstances  which  enabled  him,  in  that  short  period,  to  master 
all  its  practical  details ;  and  then,  with  an  ardent  love  for  the 
noble  science  he  professed,  he  withdrew  himself  from  practice, 
and  entered  the  Law  School  at  Cambridge,  then  conducted  by  Mr. 
Justice  Story  and  the  late  Mr.  Ashmun.  There  he  pursued  his 
studies  with  a  breadth  of  views,  a  lively  interest  and  strength  of 
purpose,  which  are  rare  indeed  in  one  of  his  years.  His  progress 
was  truly  great;  and  when,  in  the  autumn  of  1830,  he  returned 
again  to  the  bar,  he  carried  with  him  a  depth  of  learning  and  habits 


1839.]  JAMES   C.  ALVOKD.  93 

of  thought  and  investigation  which  were  a  broad  and  deep  founda 
tion  for  future  eminence. 

The  numerous  and  great  obstacles  which  beset  the  path  of  a 
young  lawyer  everywhere,  especially  at  the  crowded  bar  of  our 
Commonwealth,  he  cleared  at  a  bound,  and  almost  at  once  stood  in 
the  front  rank  of  the  distinguished  lawyers  whom  the  valley  of  the 
Connecticut  River  for  several  generations  has  continued  to  produce. 
Within  the  short  period  of  a  little  more  than  ten  years,  that  valley 
has  seen  three  of  its  great  lights  of  the  law  sink  in  early  night. 
Howe,  that  bright  example  of  a  Christian  judge  ;  Ashmun,  of  whom 
it  was  beautifully  said  that  he  was  fit  to  teach  when  most  men  are 
beginning  to  learn  ;  and  now  Alvord,  of  whom  it  is  not  too  much 
to  say  that  he  was  worthy  to  stand  side  by  side*  with  them. 

At  the  decease  of  Mr.  Ashmun,  Mr.  Alvord,  though  scarcely  older 
than  the  majority  of  the  pupils  at  the  Law  School,  was  called  to 
supply  his  place  until  a  permanent  professor  could  be  appointed. 
The  young  men  who  were  under  his  care,  as  well  as  the  eminent 
judge,  who  then,  as  now,  was  at  the  head  of  the  school,  will  bear 
witness  how  faithfully  and  well  he  discharged  his  duties.  In  the 
Legislature  of  1837,  he  represented  his  native  town  of  Greenfield 
in  the  lower  house.  In  the  next  Legislature,  he  represented  his 
native  county  in  the  Senate  ;  and  at  the  ensuing  election,  in  the  fall 
of  1838,  he  was  chosen,  by  a  very  large  majority,  to  represent  the 
district  in  the  Congress  of  the  United  States  which  will  assemble 
in  December  next.  To  the  All-wise  Disposer  of  events,  it  seemed 
fit  that  his  duties  there  should  never  begin. 

His  was  truly  a  remarkable  mind.  With  a  quickness  of  intellect 
which  travelled  to  conclusions  with  the  rapidity  of  light,  he  united 
habits  of  the  most  patient  investigation.  Searching  always  for 
principles,  he  had  yet  as  much  deference  for  authority  as  a  vigorous 
mind  can  feel.  Though  capable  of  long-continued  labor,  his  power 
of  concentration  was  so  great  as  almost  to  dispense  with  it. 

Though  exceedingly  zealous  in  action  and  of  an  ardent  tempera 
ment,  his  opinions,  even  on  the  most  exciting  subjects  of  the  dav, 
were  uniformly  the  result  of  a  nicely  balanced  judgment.  United 
with  these  intellectual  qualities  was  a  character  from  which  they 
borrowed  new  vigor.  Courage  which  always  rose  with  the  occasion, 
until  it  became  perfectly  indomitable ;  firmness  of  purpose  which 
no  opposition  could  shake  ;  a  generous  self-devotion,  easily  excited  ; 
an  entire  frankness  and  openness,  which  sometimes  would  have 


94  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1839. 

seemed  almost  childlike  if  it  had  not  been  united  with  a  keen  insight 
into  the  characters  and  purposes  and  weaknesses  of  others,  —  all 
these  qualities  combined  gave  him  a  control  over  men  such  as  few 
can  acquire.  Yet  how  well  do  all  that  knew  him  know  that  his 
courage  was  united  with  gentleness ;  that,  though  firm,  he  never 
showed  any  other  obstinacy  than  an  obstinate  adherence  to  his 
friends  ;  that  he  had  no  hardness  of  character,  but  almost  a 
woman's  tenderness  and  quickness  of  feeling ;  and  that  his  per 
ception  of  others'  weaknesses  was  no  quicker  than  his  impulse  to 
help  them. 

The  writer  of  this  imperfect  sketch  has  known  him  in  the  halls 
of  legislation,  at  the  bar,  in  professional  studies,  in  domestic  life, 
in  the  offices  of  friendship,  and,  though  he  was  ambitious,  hns 
never  seen  the  least  attempt  to  advance  himself  professionally  or 
politically  by  the  smallest  deviation  from  principle.  From  year  to 
year,  the  writer  has  found  his  convictions  strengthening,  that,  if  the 
ordinary  length  of  years  should  be  granted  to  Mr.  Alvord,  the 
country  would  owe  to  him  at  his  death  a  debt  of  gratitude  such  as 
is  rarely  due.  He  had  hoped  to  see  the  noonday  brightness  of 
that  sun,  —  but  let  no  man  say  it  is  riot  best  as  it  is. 

"  Surrounded  by  his  family,  watched  by  affection's  gentle  eye,  he 
sank  to  rest ; "  and,  though  he  died  young,  we  can  truly  say  of  him 
what  was  said  of  one  who  had  lived  twice  his  years, "  Multa  ejus  et 
in  senatu  et  in  foro,  vel  provisa  prudenter,  vel  acta  constanter,  vel 
responsa  acute;"  and  what  is  more,  and  most  of  all,  we  can  say 
that  this  brief  life  is  competent  to  teach  us  how  few  years  are 
necessary  to  form  a  manly  and  virtuous  character.  Though  to  our 
short  sight  his  death  may  seem  premature,  yet  even  we  can  see 
that  he  is  indeed  happy  who  has  found  such  an  end  of  such  a  life. 

In  after  years,  when  great  trouble  came  upon  our  coun 
try,  and  the  dark  clouds  of  sectional  passion  lowered  over 
the  whole  land,  it  was  often  doubted,  in  my  brother's  hear 
ing,  whether  Alvord's  course  and  influence,  if  he  had  lived, 
would  not,  from  the  ardor  of  his  nature  and  in  the  tempta 
tions  of  ambition,  have  proved  unfortunate  for  himself  and 
for  the  public  weal.  But  my  brother  never  would  admit 
the  peril  which  others  suggested.  He  said  that  Alvord, 
although  ambitious  and  fond  of  popular  approbation,  was 


1836.]  A  GREAT   PRACTICE.  95 

too  broad,  wise,  and  great  a  man  to  have  become  in  any 
way  a  dangerous  one ;  that  he  was  made  for  a  national 
statesman,  and  not  for  "  a  sectional  man,  a  local  man,  a 
separatist."  1 

Of  my  brother's  professional  avocations  and  rank  during 
this  period  of  his  life,  it  is  to  be  observed  that,  in  the 
variety  and  importance  of  his  engagements  and  of  the 
branches  of  jurisprudence  involved  in  them,  he  was  second 
to  no  man  of  that  time  in  New  England ;  and  that,  before  he 
had  reached  the  age  of  forty-two,  he  was  known  as  a  lawyer 
of  great  eminence  in  the  courts  of  his  native  State,  and  in 
the  Federal  courts  of  that  portion  of  the  country.  He  first 
became  entitled  to  act  as  a  Counsellor  of  the  Supreme  Judi 
cial  Court  of  Massachusetts  in  1836,  —  the  year  when  he 
argued  the  case  of  the  slave  "  Med,"  described  in  the  pres 
ent  chapter.  The  sittings  of  that  court  in  bane  were  de 
nominated  its  "  Law  Terms."  It  appears  from  the  reports 
of  Pickering,  Metcalf,  and  Gushing,  that,  during  the  fifteen 
years  from  1836  to  1851,  he  took  part  in  the  argument  of 
one  hundred  and  thirty-eight  cases  at  the  law  terms  of  the 
Supreme  Court.  In  the  Circuit  Court  of  the  United  States 
for  the  First  Circuit,  he  made  arguments  during  the  same 
period  in  many  cases,  which  are  reported  in  Sumner,  Story, 
and  Woodbury  and  Minot.  An  equally  large  proportion  of 
nisi  prius  trials,  and  of  hearings  in  admiralty  in  the  District 
Court  of  the  United  States,  constituted  a  part  of  his  profes 
sional  labors,  while  a  constant  chamber  practice  also  occu 
pied  his  attention.  To  sustain  such  an  amount  of  professional 
labor  in  all  departments  of  the  law,  and  to  answer  the  de 
mands  of  clients  who  could  expect  the  services  of  an  attorney, 
an  adviser,  and  an  advocate  from  the  same  person,  required 
an  almost  incessant  labor  and  a  great  variety  of  professional 

1  "  What  States  are  to  secede  1  What  is  to  remain  American  ?  What 
am  I  to  be  ?  An  American  no  longer  ?  Am  I  to  become  a  sectional  man, 
a  local  man,  a  separatist,  with  no  country  in  common  with  the  gentlemen 
who  sit  around  me  here,  or  who  fill  the  other  house  of  Congress  ?  Heaven 
forbid  !  "  (Webster,  Speech  on  the  7th  of  March,  1850.) 


96  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1836. 

accomplishments.  In  the  earlier  years  of  his  practice  in 
Boston,  from  the  number  and  magnitude  of  the  litigations 
in  which  he  was  concerned,  and  the  responsibility  imposed 
upon  him  by  the  weight  of  the  interests  on  which  he  was 
privately  consulted,  he  was  in  some  clanger  of  overtasking 
both  his  mental  and  physical  powers.  But,  as  he  Avent  on, 
he  acquired  a  facility  which  is  rarely  found  until  a  later 
period  of  life.  It  was  observed  of  him  that,  in  the  ease  with 
which  he  could  go  de  die  in  diem  from  court  to  court  in  suc 
cessive  engagements  of  the  most  different  kinds,  and  in  the 
sustained  and  uniform  excellence  of  his  efforts  in  them,  he 
resembled  that  distinguished  person  who  was  at  the  same 
period  exhibiting  at  the  English  bar  what  was  considered 
the  most  remarkable  professional  versatility  of  our  times,  — 
Sir  William  Follet.  But  the  aids  which  a  leading  English 
barrister  derives  from  attorneys  and  solicitors,  his  general 
exemption  from  the  duty  of  seeing  clients  and  witnesses, 
and  the  completeness  of  the  briefs  which  are  placed  in  his 
hands,  give  him  one  advantage,  at  least,  over  his  American 
brother,  who  is  often  obliged  to  be  at  once  special  pleader, 
consulting  counsel,  and  advocate  in  court. 

The  two  systems  of  professional  labor  —  growing  partly 
out  of  a  difference  of  manners  in  the  two  countries,  and 
partly  out  of  a  difference  in  their  laws  — do  not  admit  of  a 
comparison  that  will  determine  which  of  them  produces 
the  most  accomplished  lawyers  or  the  most  accomplished 
men.  All  that  we  can  say  of  our  own  system,  in  regard  to 
its  tendency  to  produce  accomplished  judges,  is,  that  when 
the  varied  experience  of  an  American  lawyer,  as  in  the  case 
of  Mr.  Curtis,  has  carried  him  through  the  widest  range  of 
the  duties  of  an  attorney,  a  chamber  counsel,  and  an  advo 
cate,  he  is  as  well  fitted  for  the  bench  as  any  man  can 
become  under  our  institutions,  and  as  the  interests  of  our 
society  require  him  to  be,  provided  he  possesses  the  judicial 
habit  of  mind  and  the  moral  qualities  which  the  judicial 
function  demands  in  its  highest  exhibition. 


1840.]  RULE   OF   PUBLIC    ACTION.  97 

I  am  now  to  turn  from  the  strictly  professional  side  of 
his  character,  and  to  answer  the  natural  inquiry  of  what  he 
was  or  did  in  other  spheres  of  intellectual  activity.  It  has 
been  frequently  asked,  how  it  happened  that  he  did  not 
become  a  statesman.  Why  was  it  that  one  who  was  so 
furnished  with  the  knowledge  that,  under  free  institutions, 
is  a  high  qualification  for  public  life,  so  endowed  with  the 
power  of  impressing  his  convictions  upon  others,  so  capable 
of  instructing  the  public  mind  upon  subjects  material  to 
the  public  welfare,  —  why  was  it  that  he  did  not  enter  the 
political  field  and  make  himself  felt  in  the  political  world  ? 
The  question  is  one  peculiarly  liable  to  be  asked  in  this 
country,  where  the  general  expectation  is  that  great  abili 
ties  at  the  bar  will  be  accompanied  by  corresponding  emi 
nence  and  activity  in  the  political  sphere.  The  popular 
idea  is,  that,  if  a  man  is  only  a  distinguished  lawyer,  there 
is  an  implied  defect  in  his  character  or  his  mind,  and  his 
having  attained  or  not  attained  political  office  is  made  the 
test  of  his  greatness.  Not  unfrequently,  too,  it  is  assumed 
that  distinction  in  politics  is  a  proof  of  distinguished  pro 
fessional  abilities.  I  am  not  content  to  rest  the  answer  to 
these  inquiries,  in  the  case  of  Mr.  Curtis,  upon  his  lack  of 
political  ambition,  which  was  certainly  a  trait  of  his  char 
acter  ;  for  no  right-minded  person  will  suggest  that  political 
ambition  is  necessarily  a  duty  of  a  good  citizen.  Nor  do  I 
think  it  sufficient  to  say  that  he  had  a  chosen  field  for  the 
exercise  of  his  powers,  and  that  he  found  in  that  field  abun 
dance  of  occupation  in  what  seemed  to  him  the  best  oppor 
tunity  for  being  useful  to  society.  It  is  rather  my  duty  to 
give  frankly  my  own  conception  of  the  feelings  and  princi 
ples  which  governed  his  course  of  life,  believing  that  I 
know  them,  not  only  from  observation,  but  from  frequent 
conversation  with  him  in  regard  to  his  public  relations  and 
duties.  It  is  equally  incumbent  on  me  not  to  leave  the 
reader  to  suppose  that  there  was  any  neglect  of  those  duties 
and  relations,  measuring  his  fulfilment  of  them  by  what  it 

VOL.    I.  7 


98  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.          [1841. 

was  practicable  for  him  to  do,  and  by  what  he  did.  In  this 
measurement,  it  must  be  considered  that  for  the  lower  poli 
tics  he  had  neither  taste  nor  capacity.  He  could  not  "  give 
up  to  party  what  was  meant  for  mankind."  While  he  had 
nothing  about  him  that  would  have  been  specially  useful  to 
party,  he  had  a  great  deal  about  him  that  could  be  emi 
nently  useful  to  society.  For  the  higher  politics  he  had 
great  capacities.  No  man's  views  upon  any  important 
public  question  were  sounder;  no  man  thought  more  justly, 
comprehensively,  and  wisely  upon  any  subject  that  con 
cerned  the  public  welfare ;  no  man  possessed  more  courage 
in  encountering  public  opinion  when  it  was  wrong,  or  was 
better  able  to  instruct  and  guide  it  in  the  right.  All  this 
was  well  known.  But  that  which  sometimes  appeared  in 
him,  to  superficial  observers,  to  be  a  fastidious  withholding 
of  himself  from  the  political  conflicts  of  his  time,  or  to  be 
induced  by  a  selfish  absorption  of  his  energies  in  the  pur 
suits  of  his  profession,  was  in  truth  a  systematic  principle 
of  action  deliberately  and  wisely  chosen.  He  regarded 
whatever  power  he  had  to  act  upon  public  sentiment,  what 
ever  weight  of  character  he  possessed,  whatever  facility  he 
had  for  instructing  his  fellow-citizens,  whatever  influence 
their  respect  for  him  had  given  him,  as  so  many  trusts  to 
be  exercised  only  when  he  saw  or  believed  that  an  oppor 
tunity  was  before  him  for  doing  good,  and  not  to  be  lightly 
or  frequently  employed.  In  this  conscientious  economy  of 
the  moral  capital  which  he  held,  he  would  not  squander  or 
risk  a  particle  of  it  upon  mere  partisan  demands,  or  venture 
it  in  any  way,  unless  he  felt  that  the  occasion  or  the  sub 
ject  called  for  just  such  discussion  or  inculcation  as  he  felt 
qualified  to  give.  When  he  was  satisfied  that  this  was  the 
case,  how  much  he  risked,  or  what  he  was  personally  to 
gain  or  lose,  rarely  entered  into  his  thoughts.  He  aimed 
to  convince  all  whom  he  could  convince,  and  thus  to  dis 
charge  his  duty  to  society. 

It  is  obvious  that  a  man  who  thus  acted  in  reference  to 


1842.]  ARTICLE   ON   THE   STATE   DEBTS.  99 

public  affairs  would  speak  or  write  but  rarely  on  any  public 
topic,  and  that  the  occasion  or  the  subject  which  would  call 
forth  his  exertions  would  be  one  of  more  than  ordinary  im 
portance.  Some  principle  must  be  at  stake  ;  some  example 
must  be  wanted ;  some  course  of  action  must  be  material  to 
the  public  welfare  in  a  large  sense  and  to  a  high  degree ; 
some  wrong  of  a  more  than  ordinary  character  must  require 
to  be  rebuked ;  some  state  of  public  opinion  or  feeling  need 
ing  the  best  enlightenment  must  exist,  —  before  such  a 
man  would  be  likely  to  come  forward  and  use  the  influence 
that  he  had.  It  will  be  found,  therefore,  in  the  instances 
which  I  shall  now  adduce,  and  in  others  to  which  I  shall 
refer  at  a  later  period,  that  such  was  the  character  of  every 
occasion  or  topic  on  which  Mr.  Curtis  undertook  to  ad 
dress  the  public  mind  ;  that  these  were  frequent  in  the 
proportion  in  which  any  just  demands  of  public  duty  could 
be  said  to  rest  upon  him  ;  and  that,  in  doing  what  he  en 
deavored  to  do,  public  duty  alone  was  his  motive,  and  the 
public  good  his  single  aim. 

Between  the  years  1836  and  1842,  the  States  of  Pennsyl 
vania,  Maryland,  Mississippi,  Michigan,  Louisiana,  Indiana, 
and  Illinois  had  contracted  public  debts,  or  become  obli 
gated  for  the  debts  of  private  corporations,  which  in  one 
form  or  another,  on  various  pretexts,  they  refused  or  threat 
ened  to  refuse  to  pay.  It  was  then  that  the  word  REPU 
DIATION,  first  coined  in  Mississippi  into  the  sense  and 
application  in  which  it  has  since  had  a  bad  eminence  in 
our  country,  began  to  be  used.  Many  countries  in  Europe 
contained  numerous  injured  creditors  of  these  States,  who 
had  taken  their  obligations  in  reliance  upon  their  public 
faith  ;  and  these  creditors  comprehended  all  ranks  and  de 
scriptions  of  people  who  had  any  money  to  invest,  —  bank 
ers,  clergymen,  shopkeepers,  mechanics,  farmers,  and  women. 
In  short,  the  public  stocks  of  these  States  were  held  by  the 
multifarious  classes  of  individuals  to  whom  punctual  pay 
ment  of  their  incomes  is  a  matter  of  supreme  personal  im- 


100  MEMOIR   OF   BENJAMIN   BOBBINS   CUKTIS.          [1843. 

portance.  At  home,  the  holders  of  these  obligations  were 
not  so  numerous,  and  perhaps  not  so  diversified.  But 
wherever  they  existed,  there  was  great  individual  suffering ; 
and,  in  addition  to  this,  to  borrow  the  language  of  Mr. 
Curtis,  "  disgrace  had  fallen  upon  the  people  of  this  coun 
try  in  the  eyes  of  the  civilized  world."  Abroad,  there  was 
no  true  understanding  of  the  facts,  or  any  proper  compre 
hension  of  the  degree  of  responsibility  for  this  state  of 
things  justly  resting  upon  the  national  government  or  the 
governments  of  the  States.  Public  opinion  in  this  country, 
save  in  those  States  whose  public  credit  and  financial  con 
duct  had  always  been  without  suspicion  or  reproach,  was 
inclining  to  excuse  or  justify  some  of  the  delinquent  States. 
There  was  danger  that  "repudiation"  might  become  an 
accepted  mode  of  meeting  public  obligations  which  it 
might  be  inconvenient  to  discharge,  or  unpopular  to  pro 
vide  for. 

Mr.  Curtis  had  no  pecuniary  interest  whatever  in  any  of 
these  securities,  nor  had  any  of  his  relatives.  He  felt 
deeply  the  stain  on  the  American  name  which  already 
rested  upon  it,  and  which  threatened  to  become  indelible. 
He  saw  how  imperfectly  the  subject  was  understood,  —  how 
necessary  it  was  that  the  case  of  each  of  the  delinquent 
States  should  be  analyzed,  and  have  applied  to  it  the  true 
principles  of  public  law  and  that  high  moral  code  which 
should  govern  the  conduct  of  a  sovereign  people.  He  saw 
that  angry  denunciation  could  effect  nothing,  and  that  only 
a  calm,  judicial,  and  unimpassioned  discussion  could  reach 
the  public  mind.  He  was  well  aware  that  it  would  be 
utterly  vain  to  deal  with  this  subject  as  a  politician  might 
handle  it ;  and  that  it  was  only  as  a  jurist,  a  moralist,  and 
an  impartial  citizen,  fearing  nothing  but  wrong,  and  con 
cerned  for  nothing  but  right  and  justice,  that  he  could  hope 
to  accomplish  any  good. 

He  prepared  himself  with  great  care  and  research  to  sum 
up  the  whole  case  of  the  repudiating  States,  and  to  examine 


1844.]  ARTICLE    ON    THE    STATE    DEBTS.  101 

in  detail  the  several  arguments,  excuses,  or  subterfuges  that 
had  been  relied  upon,  in  or  out  of  each  particular  State,  to 
justify  its  delinquency.  He  chose  the  form  of  an  article  in 
the  "  North  American  Review,"  because  he  could  there  best 
deposit  the  facts,  principles,  and  reasoning  to  which  others 
might  resort  as  to  a  storehouse,  and  which  would  furnish 
what  he  deemed  the  sound  and  just  conclusions  to  which 
public  opinion  should  be  led.  His  paper,  entitled  "  Debts  of 
the  States,"  was  first  published  in  the  North  American  Re 
view  for  January,  1844,  and  was  immediately  republished 
and  widely  circulated  in  pamphlet.  It  is  included  in  the 
present  collection  of  his  writings;  and  whoever  now  reads 
it  will  judge  whether  it  justifies  my  remark,  that  for  the 
higher  politics  he  had  great  capacities,  which  he  was  will 
ing  to  use  for  the  public  good.  If,  in  the  whole  range 
within  which  a  public  topic  may  be  treated,  there  be  a 
higher  and  a  lower  plane, — if  there  be  a  supreme  foun 
tain  of  truth  and  reason,  from  which  the  means  of  persua 
sion  and  conviction  are  to  be  drawn  for  the  welfare  of 
mankind,  and  made  practically  more  powerful  than  the 
baser  passions  and  narrow  objects  of  immediate  self- 
interest, —  then  there  is  a  broad  distinction  between  the 
higher  and  the  lower  politics.  That  the  loftier  plane 
was  reached  in  this  appeal  to  the  better  sense  of  a 
people,  —  that  the  highest  strains  of  what  is  rightly  called 
eloquence  flowed  from  his  pen,  through  many  passages  in 
prose  of  the  purest  diction,  impressive  thought,  and  chaste 
construction,  —  will  I  think  be  allowed.  The  paper  is 
valuable  now,  not  only  as  an  illustration  of  the  writer's 
character,  but  on  account  of  the  principles  of  public  and 
constitutional  law  to  which  he  has  there  given  the  sanction 
of  his  authority.  He  spoke  of  it  in  the  subjoined  letter 
as  having  been  written  hastily ;  but  in  fact,  before  it 
was  published,  he  went  over  the  whole  of  it  again  very 
carefully,  and,  with  the  aid  of  a  friend  in  Baltimore, 
he  made  it  much  more  full,  in  regard  to  the  real  finan- 


102  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1844 

cial  situation   of  the    State   of   Maryland,  than  it  was  in 
its  first  form.1 

To  MR.  TICKNOR. 

CIRCUIT  COURT  ROOM,  Nov.  3,  1843. 

DEAR  UNCLE,  —  I  hoped  to  be  able  to  see  you  a  few  minutes 
before  leaving  for  New  York,  but  I  cannot :  I  shall  be  in  court 
till  the  last  moment.  I  wished  to  say  that,  if  you  will  have  the 
kindness  to  use  your  pencil  freely  in  reading  my  paper  on  the  state 
debts,  1  shall  be  much  obliged  to  you :  please  to  make  any  correc 
tions  of  words  or  phrases  or  ideas  which  occur  to  you.  I  have  no 
doubt  it  will  be  found  to  need  a  good  deal  of  correction.  I  have 
been  for  ten  years  so  little  in  the  habit  of  writing  any  thing  but 
bills  in  equity,  and  such  like,  and  so  much  in  the  habit  of  debating, 
that  I  have  found  it  very  difficult  to  write  in  a  style  adapted  to  the 
character  of  the  paper.  It  has  been  written  also  in  much  ha.ste,  and 
in  the  short  intervals  I  could  snatch  from  severe  professional  labors. 
I  know  it  is  incomplete  also  in  some  particulars,  and  I  intend  to  add 
something  to  show  that  Maryland  is  not  in  so  bad  a  condition  after 
all.  I  beg  you,  in  reading  the  article,  to  bear  in  mind  the  circum 
stances  under  which  it  was  written,  and  that  I  have  not  had  time 
to  give  it  a  revision.  I  hope  to  return  from  New  York  on  Sunday 
morning.  Yours  most  truly, 

B.  R.  CURTIS. 

FROM  MR.  JUSTICE  STORY. 

CAMBRIDGE,  Jan.  2,  1844. 

MY  DKAR  SIR,  —  I  return  you  my  sincere  thanks  for  the  present 
of  your  article  on  the  State  Debts  in  the  North  American  Review, 
which  I  am  glad  to  possess  in  an  independent  form.  I  have  read 
it  with  the  greatest  satisfaction.  It  is  equally  remarkable  for  its 
conciliatory  tone,  its  clear  statement  of  facts,  the  calmness  and 
conclusiveness  of  its  reasoning,  and  its  sound  constitutional  views. 

O" 

I  think  that  in  this  country,  as  well  as  in  England,  its  influence 
will  be  at  once  extensive  and  salutary. 

For  your  personal  remarks  to  myself,  I  am  indeed  truly  your 

1  The  gentleman  here  referred  to  was  John  H.  B.  Latrobe,  Esq.,  of  Balti 
more,  to  whom  my  brother  was  indebted  for  a  comprehensive  and  accurate 
account  of  the  public  debt  and  resources  of  Maryland. 


1844.]  FIRST   DOMESTIC   SORROW.  103 

debtor.  Such  kindness  and  such  praise  from  one  whose  course  is 
so  high  and  honorable  is  to  me  a  source  of  the  most  unfeigned 
gratification.  I  will  not  disguise  that  I  have  the  greatest  pride  in 
you  as  one  of  my  law  pupils ;  and  I  trust  that,  even  if  a  solitary 
lesson  at  the  School  has  left  any  deep  impression  on  your  memory, 
it  is  no  less  a  source  of  consolation  to  the  Professor  who  still  sur 
vives,  that  his  own  recollections  of  your  devotion  to  the  law  while 
here  gave  him  the  strongest  assurances  of  your  future  eminence. 
Believe  me  most  truly  and  affectionately  yours, 

JOSEPH  STORY. 
BENJAMIN  R.  CURTIS,  Esq. 

But  I  must  now  turn  aside  from  public  questions  and 
professional  avocations,  to  a  domestic  event  which  put  the 
character  I  am  endeavoring  to  place  before  the  reader  to  one 
of  those  trials  that  reveal  the  materials  of  which  a  character 
is  composed.  In  the  month  of  July,  1844,  my  brother  lost 
the  wife  of  his  youth.  Without  comment,  and  without  dis 
closing  more  than  should  be  seen,  I  may  permit  the  perusal 
of  the  following  letters  :  — 

To  MR.  TiCKNOR.1 

BOSTON,  July  10,  1844. 

MY  DEAR  UNCLE,  —  I  got  your  letter,  and  Aunt's  most  kind  and 
welcome  note  to  Eliza,  this  morning.  I  feel  sustained  and  strength 
ened  by  your  sympathy  in  this  trial.  I  have  a  strong  conviction 
that  the  event  of  the  disease  must  be  unfavorable,  and  I  am  as 
well  prepared  to  sustain  it  as  I  ought  to  hope  to  be.  We  have 
spent  ten  days  at  Hopkinton.  The  change  of  air  and  the  quiet  of 
the  place  were  comforting  to  her,  but  I  do  not  think  she  returned 
really  better.  She  does  not  suffer  a  great  deal,  except  from  exces 
sive  weakness  at  times ;  and  she  bears  it  all  patiently  and  cheer 
fully.  I  feel  grateful  to  you  for  your  wishes  to  be  with  us ;  but 
there  is  nothing  to  be  done  save  what  we  can  easily  do,  and  I  am 
quite  equal  to  all  which  is  necessary. 

It  gives  me  great  pleasure  that  Aunt  is  doing  so  well.  Give  my 
love  to  her,  and  to  all,  and  believe  me 

Affectionately  yours,  B.  R.  CURTIS. 

1  Absent  and  travelling. 


104  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS'.  [1841. 

P.  S.  It  has  occurred  to  me  that  I  ought,  perhaps,  to  give  you 
some  more  particular  account  of  the  symptoms  and  progress  of  the 
disease  ;  but  such  details  are  always  painful.  .  .  .  This  morning 
when  I  left  her  she  was  quiet,  and  even  cheerful,  and  made  some 
playful  remark  to  me  as  1  came  away.  While  we  were  at  Hopkin- 
ton  she  herself  was  convinced  that  she  should  not  recover ;  but  she 
was  not  agitated,  nor  did  she  at  any  time  lose  her  self-command. 
I  have  entire  confidence  that  she  is  quite  prepared  for  either  event, 
and  that,  with  God's  help,  she  will  bear  it  all  well. 

To  MR.  TICKNOR. 

BOSTON,  July  22,  1844. 

MY  DEAR  UNCLE,  —  I  have  just  received  your  letter  dated  at 
Geneseo.  Eliza  is  still  living,  and  it  is  possible  may  continue  for  a 
day  or  two  longer,  though  I  think  not.1  Her  sufferings  have  at  no 
time  been  great,  and  of  late  I  think  she  has  not  suffered.  Certainly 
she  is  not  conscious  of  any  suffering.  I  am  quite  well.  The  advice 
you  give  me  in  your  letter  I  know  to  be  most  judicious  ;  for  I  have 
followed  the  course  you  point  out,  and  have  up  to  this  moment 
preserved  my  composure  of  mind.  I  came  early  to  the  conclusion 
that  the  termination  must  be  fatal,  and  I  thank  God  that  I  was 
able  to  look  steadily  and  calmly  upon  what  was  coming.  From 
that  time,  I  have  kept  out  of  my  mind  all  thoughts  which  would 
disturb  my  firm  trust  in  God,  and  acquiescence  in  his  will,  and  have 
endeavored  to  think  and  act,  in  regard  to  this  event,  just  as  1  should 
wish  to  have  done  in  looking  back  upon  it  some  months  hence.  I 
have  been  every  day  to  my  office,  and  several  times  into  court,  and 
have  been  able  to  apply  my  mind  to  some  matters  which  required  a 
good  deal  of  study  and  reflection.  I  mention  these  things,  my  dear 
uncle,  not  because  I  like  to  talk  about  myself,  but  that  you  and 
Aunt  and  Cousin  Anna  may  not  feel  anxious  about  me,  —  in  short 
that  you  may  not  fail  to  do  what  I  have  done,  viz.  to  suffer  no 
unreal  evil  to  disquiet  you.  Certainly  it  would  be  a  great  consola 
tion  to  me  to  have  you  here,  but  it  will  be  equally  so  by  and  by  ; 
and  therefore  I  sincerely  hope  you  will  not  by  hastening  home  de 
prive  Aunt  of  any  benefit  which  she  can  have  by  a  longer  stay. 
The  children  are  very  well,  and  the  infant  is  a  fine  child,  and  grows 
fast.  Give  my  love  to  all,  and  believe  me  now  and  always 
Yours  affectionately, 

B.  R.  CURTIS. 

1  The  disorder  was  consumption. 


1844.]  RESIGNATION    AND   PEACE   OF   MIND.  105 

To  MR.  TICKNOR. 

BOSTON,  July  25,  1844. 

DEAR  UNCLE,  —  George  wrote  to  you  two  days  since,  but  I 
am  not  willing  to  let  another  day  pass  without  a  few  lines  from  me, 
to  say  that  I  am  able  to  write  to  you,  that  I  am  well,  that  the 
children  are  cheerful  and  in  good  health,  and  mother,  who  of  course 
is  with  me,  is  composed  and  quiet,  though  somewhat  exhausted  by 
her  labors  and  watching.  I  have  been  so  long  prepared  for  the 
event,  the  tone  of  my  mind  for  some  weeks  has  been  so  far  fixed 
and  adapted  to  what  has  come,  that  I  have  been  able  to  bear  the 
blow  with  composure.  The  fortnight  which  I  passed  at  Hopkinton, 
in  entire  solitude  when  not  in  attendance  on  her,  was  of  great  use 
to  me,  and  on  my  return  to  Boston  I  at  once  forced  myself  into 
constant  occupation  during  a  part  of  every  day  ;  so  that  I  have  at  no 
time  since  I  returned  wholly  lost  that  calmness  of  mind  which  it  is, 
in  such  scenes,  so  important  to  others,  as  well  as  to  one's  self,  to 
preserve.  The  children  bore  their  grief  with  some  fortitude, 
though  of  course  it  was  a  grievous  thing  to  them.  They  are  now 
cheerful  and  well.  I  feel  quite  anxious  lest  you  should  hasten 
home.  I  earnestly  hope  you  will  not  come  one  day  sooner  than  is 
for  Aunt's  advantage.  I  shall  stay  here  a  week  or  two  and  go 
on  with  my  business,  and  then  go  away  for  a  short  time  to  Newport, 
or  some  other  pleasant,  healthful  place. 

Give  my  love  to  Aunt  and  the  cousins,  and  believe  me 
Your  affectionate  nephew, 

B.  E.  CURTIS. 


106  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1846 


CHAPTER  V. 

1845-1851. 

Death  of  Judge  Story.  —  Mr.  Curtis  appointed  to  succeed  him  in  the  Cor 
poration  of  Harvard  College.  —  Letters  to  Mr.  Ticknor.  —  The  Fugitive- 
Slave  Excitement  in  Boston.  —  Address  of  Welcome  to  Mr.  Webster.  — 
Speech  in  Faneuil  Hall  on  the  Duty  of  obeying  the  Constitution. — Ad 
dress  to  the  People  of  Massachusetts,  occasioned  by  the  "  Coalition." 

IN  September,  1845,  the  death  of  Judge  Story  profoundly 
moved  the  community  in  which  the  whole  of  his  laborious, 
useful,  and  distinguished  life  had  been  passed,  when  he  was 
not  away  from  it  on  his  judicial  duties.  His  energetic 
nature  acted  upon  society  in  many  ways  that  were  not  in 
consistent  with  his  judicial  character.  Among  the  local 
positions  which  he  had  held  for  many  years,  the  Dane 
Professorship  of  Law  in  the  University  at  Cambridge,  and 
a  membership  of  its  "  Corporation,"  were  the  most  con 
spicuous  and  important.  Mr.  Curtis  was  selected  to  succeed 
him  in  the  Corporation.  This  had  always  been  deemed  a 
great  distinction.  The  trusts  and  authorities  exercised  by 
this  board  required  that  it  should  be  composed  of  men  of 
known  wisdom  and  Aveight  of  character,  Avhose  residence  in 
the  immediate  neighborhood  of  the  University  would  permit 
their  constant  attendance  to  its  concerns.  A  vacancy  in 
the  Corporation  had  rarely  been  filled  by  the  appointment 
of  so  young  a  man  as  Mr.  Curtis.1  It  was  mainly  through 

1  "  The  Corporation,"  as  it  is  habitually  called  in  the  neighborhood  of 
the  University,  is  the  governing  body,  which  is  charged  with  the  care  and 
administration  of  all  its  fiscal  concerns,  the  appointment  of  its  professors 
and  all  officers  of  instruction  and  government,  and  the  regulation  of  all  its 


1845.]  LETTERS   TO  MR.  TICKNOR.  107 

his  exertions  and  influence  that  Judge  William  Kent,  of 
New  York,  was  appointed  to  and  induced  to  accept  the 
vacant  Professorship  of  Law.1 

The  summer  of  1845  was  passed  by  my  brother  and  his 
children  at  Nahant,  near  the  residence  of  his  friend  and 
partner,  Mr.  Charles  P.  Curtis.  The  following  letters, 
written  during  that  and  the  succeeding  year,  relate  to 
domestic  affairs,  to  some  of  the  concerns  of  the  College,  and 
to  the  death  of  Judge  Story :  — 

To  MB.  TICKNOR. 

NAHANT,  Aug.  3, 1845. 

DEAR  UNCLE,  —  I  have  no  expectation  now  that  I  shall  be  able 
to  come  to  Geneseo  this  summer.  I  had  hoped  that  Mrs.  Curtis's 2 
condition  would  be  somewhat  improved  by  the  air  of  Nahant.  and 
though  I  expected  no  permanent  effects  from  it,  I  thought  she 
would  probably  go  through  the  summer  pretty  well.  It  has  not 
proved  so.  She  has  been  saved  from  much  discomfort  by  being 
here,  away  from  the  noise  and  heat  of  the  town ;  but  her  condition 
has  been  such  as  to  excite  constant  apprehension  in  the  minds  of 
those  near  her,  and  to  leave  no  doubt  that  the  disease  has  made 

internal  affairs,  subject,  in  some  respects,  to  the  confirmation  of  another 
body,  known  as  "  The  Board  of  Overseers."  In  law,  the  Corporation, 
officially  styled  "  The  President  and  Fellows  of  Harvard  College,"  repre 
sents  the  University.  The  President  of  the  University  is  ex  offido  a  member 
of  it,  and  there  are  five  "  Fellows  "  and  a  Treasurer.  This  Corporation  fills 
its  own  vacancies. 

1  The  Hon.  William  Kent,  only  son  of  the  great  Chancellor,  admirably 
qualified  by  his  learning,  his  genial  manners,  and  his  numerous  accomplish 
ments  for  such  a  place,  became  Dane  Professor  of  Law  in  Harvard  Uni 
versity  in  the  autumn  of  1846.     He  held  the  position,  however,  for  a  single 
year  only.     He  resigned  the  professorship  in  18-47,  to  the  great  regret  of  the 
authorities  and  friends  of  the  University.     It  was  stated  by  his  intimate 
friend,  Benjamin  D.  Silliman,  Esq.,  at  a  meeting  of  the  New  York  bar, 
held  after  his  death,  that  he  resigned  "  that  he  might  be  with  his  venerable 
father,  whose  twilight  was  then  fast  fading  into  night."    Judge  Kent  was 
born  in  Albany,  on  the  2d  of  October,  1802,  and  died  at  Fishkill,  on  the  4th 
of  January,  1861.     He  was  a  very  distinguished  and  much  beloved  member 
of  the  bar  of  the  city  of  New  York,  for  nearly  thirty-seven  years. 

2  Mrs.  Anna  Wroe  Curtis,  wife  of  Mr.  Charles  Pelham  Curtis. 


108  >MEMOIB   OF  BENJAMIN  BOBBINS   CURTIS.  [1845. 

progress  since  she  came  here.  Of  course  Mr.  Curtis  has  been  un 
able  to  take  his  usual  part  in  the  business  of  our  office,  and  I  am 
obliged  to  do  more  than  usual.  Add  to  this  that  my  presence  here 
is  some  support  and  consolation  to  those  who  very  much  need  them, 
and  you  will  see  why  I  cannot  leave  my  post. 

Meantime,  I  am  very  well,  and  quite  able  to  do  what  is  required 
of  me,  and,  though  it  would  be  a  very  great  pleasure  to  come  to 
Geneseo  and  see  you  all,  I  cannot  say  it  is  necessary.  Mother 
and  my  children  are  very  well.  The  children  have  grown  strong 
and  hardy  here,  and  the  youngest  especially  has  improved  very 
much.  Anna  is  well  also ;  but  she  is  new  to  the  care  of  her 
father's  house,  and  her  mother's  condition  weighs  heavily  on  her 
heart.  She  goes  along  with  her  duties  with  that  steadiness  and 
never  failing  sweetness  of  temper  and  clear  judgment  which,  when 
you  know  her,  you  will  find  her  remarkable  for.1 

A  word  about  a  matter  of  charity.  A  client  of  mine,  who  has  a 
very  large  estate,  wishes  to  make  such  a  disposition  of  it  that,  in 
some  contingencies,  a  part,  and  perhaps  the  whole  of  it,  will  go  to 
the  establishing  of  a  farm  school  in  Massachusetts.  His  general 
object  is  to  afford  to  boys  a  good  education  to  fit  them  to  be  scien 
tific  farmers.  He  has  no  such  knowledge  himself  of  what  is 
necessary  or  expedient  to  be  said  by  him  as  founder,  as  would  ena 
ble  him  to  prepare  the  proper  directions  ;  and  I  have  not  the  requi 
site  knowledge,  nor  can  I  give  time  to  acquire  it.  If  it  would  not 
be  too  much  trouble,  it  would  be  useful,  I  have  no  doubt,  if  you 
would  give  me  some  of  your  ideas  respecting  such  an  institution. 
Perhaps  you  would  prefer  to  do  it  orally,  and,  if  so,  I  can  wait 
till  I  see  you  ;  for  the  will  is  executed,  and  the  trusts  are  so 
shaped  that  directions  can  be  prepared  at  leisure.  Give  my  love 
to  Aunt  and  the  cousins.  I  hear  of  you  through  those  who  go 
where  you  are,  and  this,  though  not  hearing  from  you,  is  some 
thing. 

Always  your  affectionate  nephew, 

B.  R.  CURTIS 

1  On  the  5th  of  January,  1840,  my  brother  was  married  to  Miss  Anna 
Wroe  Curtis,  eldest  daughter  of  Mr.  Charles  P.  and  Mrs.  Anna  Wroe 
(Scollay)  Curtis. 


1910.]  LETTERS   TO  MR.  TICKNOR. 

To  MR.  TICKNOR. 

BOSTON,  Sept.  11,  1845. 

DEAR  UNCLE,  —  It  must  surprise  and  grieve  you,  as  it  has  our 
whole  community,  to  learn  that  Judge  Story  died  last  night,  at  a 
quarter  before  nine  o'clock.  He  was  doing  well  until  Tuesday 
night,  and  his  physicians  considered  the  danger  past,  or  nearly  so. 
About  seven  o'  clock  on  Tuesday  he  began  to  grow  weaker,  and 
continued  to  sink  through  the  night,  and  yesterday  morning  his 
case  was  hopeless.  He  lived,  however,  till  about  nine  in  the  even 
ing.  He  was  without  pain,  and  the  cause  of  his  death  is  as  yet 
undiscovered.  Mother  says  that  Mary  bears  this  affliction  well, 
and  I  hear  the  same  from  Mrs.  Story. 

Please  give  my  love  to  Aunt.  I  hope  she  is  quite  recovered 
from  the  illness  which  I  was  sorry  to  hear  of  a  week  ago. 

We  have  returned  from  Nahant,  and  are  once  more  settled  at 
home.  Mr.  Curtis  and  his  family  have  also  come  back.  Mrs. 
Curtis  bore  the  ride  better  than  was  feared ;  but  she  is  now  very 
ill.  She  does  not  suffer  much  at  present,  and  from  the  first  has 
borne  all  with  great  patience.  How  much  longer  she  may  be 
required  to  wait  is  wholly  uncertain,  though  it  seems  to  me  it  can 
not  be  long. 

I  find  I  have  omitted  to  mention,  what  perhaps  you  would  be 
glad  to  know,  that  the  bar  have  already  made  arrangements  for 
proper  tributes  of  respect  to  Judge  Story's  memory,  and,  among 
other  things,  Mr.  Webster  will  deliver  a  discourse  on  his  judicial 
character  and  the  value  of  his  labors,  &c. 

Your  affectionate  nephew,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

Jan.  9,  1846. 

DEAR  UNCLE,  —  I  have  been  invited  to  be  a  member  of  the 
Corporation  of  the  College  in  place  of  Judge  Story.  I  am  not 
willing  to  act  on  a  matter  of  so  much  importance  without  talking 
with  you.  I  hope  you  will  not  get  tired  with  my  applications  to 
you  in  reference  to  my  affairs,  and  1  do  not  believe  you  will.  If 
you  come  down  in  town  this  morning,  will  you  stop  at  my  office 
for  a  few  minutes.  If  it  is  not  quite  convenient  to  do  so,  I  will 
see  you  in  the  evening. 

Yours  always,  B.  R.  CURTIS. 


110  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [1846. 

To  MR.  TICKNOR. 

BOSTON,  May  5,  1846. 

MY  DEAR  UNCLE,  —  I  was  very  glad  to  get  your  letter  this 
morning,  and  I  assure  you  I  have  had  better  reasons  for  my  seem 
ing  neglect  to  write  to  you  than  mere  inattention.  The  truth  is, 
I  should  have  written  more  than  once  if  I  had  been  able  to  get 
news  of  you  in  no  other  way ;  but  having  learned  from  time  to 
time  that  all  was  going  on  well  with  you,  I  forgot  that  you  might 
wish  to  hear  something  of  us,  and  not  having  a  large  amount  of 
leisure  it  had  not  occurred  to  me  to  write.  Anna  has  been  ill  with 
something  like  scarlet-fever,  taken  from  one  of  the  servants  who 
had  it  in  the  house ;  but  she  was  not  very  ill,  and  is  now  fast 
recovering.  No  one  else  has  taken  it,  and  I  think  we  are  now 
safe.  Mother  is  with  us  for  a  few  days,  and  is  pretty  well. 
George  and  Mary  went  to  the  Connecticut  River  for  a  few  days 
last  week,  and  have  returned  with  improved  health,  though  I  think 
they  both  need  to  go  away  from  Boston  for  a  few  weeks.  We 
shall  get  into  our  new  house  in  June.  I  was  at  Lynn  yester 
day,  and  it  is  going  on  well.  It  is  the  third  time  I  have  seen  it ; 
so  it  has  not  lost  the  charm  of  novelty  yet.  I  am  glad  you  got  the 
right  accounts  of  the  inauguration.1  It  was  a  very  successful  day. 
Every  thing  went  right.  I  was  greatly  pleased  with  Mr.  Everett's 
discourse,  chiefly  because  it  was  practical,  and  showed  interest  and 
feeling  to  a  degree  which  I  had  not  expected.  I  think  he  has 
pledged  both  himself  and  the  Faculty  to  good  things  ;  but  I  may 
say  to  you  that  I  am  surprised  and  pained  to  learn,  even  imper 
fectly  as  yet,  how  lax  Mr.  Quincy's  administration  has  been  of  late 
years,  and  how  lazy  many  of  the  faculty  have  become.  What  do 
you  think  of  a  New  England  college  where  most  of  the  teachers 
do  not  go  to  church  at  all,  and  next  to  none  go  in  the  afternoon  ? 
I  am  satisfied  nothing  will  answer  but  a  system  of  direct  and  regu 
lar  accountability,  upon  a  comprehensive  and  systematic  plan,  to 
the  Corporation.  How  far  I  may  be  able  to  do  any  thing  to  pro 
cure  this  to  be  done  I  know  not,  but  I  shall  try.  At  present  it  is 
substantially  unknown.  I  am  grieved  at  what  you  say  about  Kent. 
I  had  hopes  of  getting  him,  and,  being  disappointed  there,  I  know 
not  where  we  can  look.  Doubts  sometimes  cross  my  mind  whether 

1  Inauguration  of  Mr.  Everett  as  President  of  Harvard. 


1846.J  LETTERS   TO   MB.  TICKNOR.  Ill 

I  ought  not  to  say  to  the  Corporation  that  I  will  take  the  place  if 
they  cannot  do  better ;  but  it  would  be  a  great  sacrifice  of  money 
and  inclinations,  and  I  have  not  yet  got  very  far  into  doubts 
about  it. 

Please  give  my  love  to  Aunt  and  the  cousins.  Anna,  that  is  my 
Anna,  joins  me  in  it.  I  have  thought  we  might  come  to  New 
York  soon,  but  it  has  blown  over  for  the  present.  It  is  very  grati 
fying  to  us  to  know  that  all  the  eyes  are  looking  and  feeling  better, 
that  is,  when  the  doctor's  medicine  does  not  make  them  smart.1  The 
town  has  been  all  alive  about  the  steamer's  being  ashore  on  Cape 
Cod.  She  is  now  safe  at  the  wharf  here,  thanks  to  the  prompt  and 
spirited  exertions  of  the  Boston  folks.  The  people  from  Cape 
Cod  who  know  the  place  where  she  was  stranded,  all  thought 
she  would  be  buried  there,  and  it  was  a  most  rare  and  fortunate 
escape. 

Yours  faithfully,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

BOSTON,  June  6,  1846. 

DEAR  UNCLE,  —  George  goes  to  New  York  next  week,  and 
being  sure  only  of  this-present-Saturday-night-leisure  (to  use  a 
compound  ivord),  I  beg  leave  to  say  that  we  are  all  quite  well, 
and  very  glad  to  hear  favorable  accounts  of  your  patients.  We 
have  had  two  days  of  quite  warm  weather,  but  nothing  to  com 
plain  of,  and  this  day  has  been  very  fine  indeed. 

I  am  sure  you  will  be  glad  to  learn  that  we  have  strong  assur 
ances  both  from  Judge  William  Kent  and  his  father  that  the 
former  will  accept  the  vacant  Law  Professorship.  He  has  not 
actually  accepted  it,  because  he  waits  his  father's  consent,  to  be 
sought  after  his  return  and  conference  with  the  Chancellor ;  but 
the  latter  has,  in  a  letter  to  the  Chief  Justice  [Shaw],  substantially 
given  his  approval.2  I  should  prefer,  however,  for  obvious  reasons, 
that  this  should  not  be  known  in  New  York  till  the  party  chooses 
to  make  it  known.  It  is  in  contemplation  to  establish  a  third  pro 
fessorship  of  law,  but  as  yet  it  is  an  undigested  scheme.  I  was 
greatly  grieved  to  hear  some  account,  though  very  imperfect,  of 

1  Mr.  Ticknor  had  taken  his  daughter  and  some  other  ladies  to  New 
York,  to  be  under  the  care  of  Dr.  Elliot,  an  eminent  oculist. 

2  Judge  William  Kent  was  at  this  time  in  Europe. 


112  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [1850. 

Wadsworth.1     Please  to  tell  George  what  you  know  about  his  case, 
as  I  wish  much  to  learn  how  it  is  with  him. 

We  shall  probably  go  to  Lynn  about  the  first  of  July.  The 
damp  weather  has  retarded  the  workmen,  but  the  house  will  be 
ready,  I  think,  on  that  day ;  and  for  a  working  lawyer,  who  wants 
to  be  within  half  an  hour's  ride  of  his  office,  I  think  it  will  be  an 
agreeable  and  quiet  place. 

There  is  no  news  in  Boston  but  what  you  have  had  or  will 
have  before  this  reaches  you ;  and  indeed  if  there  were,  I  doubt  if 
I  should  know  it,  for  I  am  a  very  poor  collector  of  "  intelligence." 
But  however  old  the  story  is,  I  hope  you  will  allow  me  to  assure 
yourself,  Aunt,  and  the  cousins  of  the  affectionate  regards  of 

Your  nephew, 

B.  R.  CURTIS. 

The  four  succeeding  years,  from  1846  to  1850,  were  passed 
by  my  brother  in  unremitted  devotion  to  professional  pur 
suits,  scarcely  broken  by  any  vacation,  but  somewhat  re 
lieved  by  his  residence  during  the  summers  at  Lynn,  from 
which,  however,  he  came  almost  daily  to  his  business  in 
Boston.  Nothing  occurred  during  this  period  to  draw  him 
into  any  participation  in  public  affairs  ;  but  troubled  and 
trying  times  were  approaching,  in  which  he  again  had  occa 
sion  to  act  upon  the  rule  which  I  have  elsewhere  described. 
How  largely  the  tranquillity  of  American  life  was  disturbed 
by  the  cause  to  Avhich  I  am  now  to  refer,  can  scarcely  be  un 
derstood  by  those  who  have  no  personal  recollections  of  the 
conflicts  and  events  of  the  decade  preceding  our  civil  war. 

The  years  1850  and  1851  were  years  of  great  political 
excitement  throughout  the  country,  occasioned  by  the  adop 
tion  of  a  series  of  measures  by  the  Congress  of  the  United 
States  known  as  the  "  Compromise  Measures  of  1850," 
which  were  designed  as  a  final  settlement  of  all  questions 
relating  to  slavery  on  which  Congress  could  in  any  way  act. 
In  Massachusetts  this  excitement  was  vastly  intensified  by 
the  course  of  Mr.  Webster  in  the  Senate  in  regard  to  these 

1  William  W.  Wadsworth,  of  Geneseo,  brother  of  the  late  General 
Wadsworth. 


1850.'  POLITICAL  EXCITEMENT.  113 

measures,  and  by  the  differences  and  controversies  between 
those  who  approved  and  those  who  disapproved  of  his 
support  of  them. 

He  had  made  a  speech  in  the  Senate,  on  the  7th  of 
March,  lcQ50,  in  reference  to  which  there  was  a  more  angry 
conflict  among  his  constituents  than  had  been  known  in  re 
spect  to  the  conduct  of  any  other  statesman  in  their  annals. 
Men  were  divided  from  one  another  by  a  line,  according  to 
their  approbation  or  disapprobation  of  that  single  speech  ; 
one  side  consisting  of  the  great  body  of  Mr.  Webster's  per 
sonal  friends,  and  the  conservative  members  of  the  two  old 
political  parties,  the  Whigs  and  the  Democrats,  and  the 
other  side  being  composed  of  a  new  and  third  party,  made 
up  of  individuals  who  had  seceded  from  the  political 
organization  of  the  Whigs,  upon  the  professed  ground  that 
the  latter  were  not  sound  on  questions  relating  to  slavery. 
This  new  political  body  called  themselves  the  "  Free-Soil 
Party  ;  "  partly  by  way  of  describing  their  superior  opposi 
tion  to  the  further  territorial  extension  of  slavery,  in  respect 
of  which  they  accused  all  other  parties  of  lukewarmness  or 
want  of  principle,  and  partly  to  characterize  their  deter 
mination  not  to  allow  a  certain  provision  of  the  Constitution 
of  the  United  States  for  the  extradition  of  fugitives  from 
service  to  be  executed  on  the  soil  of  a  non-slaveholdinef  State. 

O 

The  leading  men  of  this  organization  were  particularly 
hostile  to  Mr.  Webster.  His  avowed  support  and  approval 
of  a  proposed  new  law  of  Congress,  one  of  the  Compromise 
Measures  of  1850,  designed  for  the  more  effectual  execu 
tion  of  that  provision  of  the  Constitution,  gave  them  the 
means  of  doing  him  much  political  injury.  Mr.  Webster's 
friends  claimed  that  he  was  acting  for  the  welfare  of  the 
whole  country,  taking  upon  himself  the  risk  of  losing  sup 
port  at  home  in  order  to  preserve  the  peace  and  harmony 
of  the  Union  ;  and  that,  in  the  matter  of  the  extradition  of 
fugitive  slaves,  he  was  acting  from  the  highest  sense  of 
constitutional  obligation.  His  enemies,  on  the  contrary, 


114  MEMOIR    OF   BENJAMIN   BOBBINS   CUKTIS.  [1850. 

contended  that  he  was  seeking  the  political  support  of  the 
South,  in  the  hope  of  being  made  President,  at  the  expense 
of  the  interests  of  the  North,  of  his  own  principles  and  his 
own  consistency. 

Mr.  Webster  was  expected  to  return  to  his  home  in 
Marshfield  for  a  short  visit,  in  the  latter  part  of  April, 
1850.  He  was  still  in  the  Senate  of  the  United  States. 
The  Compromise  Measures  had  not  then  been  enacted. 
Men's  minds  were  filled  with  the  excitement  caused  by  the 
speech  which  he  had  made  on  the  7th  of  March.  To  en 
courage  him  in  the  efforts  which  he  was  making  for  the 
pacification  of  the  country,  and  to  mark  their  sense  of  his 
patriotic  exertions,  a  great  body  of  his  fellow-citizens  deter 
mined  to  receive  him  with  a  public  demonstration,  by 
assembling  in  the  square  in  front  of  the  hotel  at  which  he 
was  to  arrive.  Mr.  Curtis  was  urged  to  make  the  address 
of  welcome  to  Mr.  Webster,  in  the  name  of  the  assembled 
multitude.  Participation  in  such  ceremonies  was  not  much 
to  his  taste.  He  never  had  been  a  partisan  ;  and  although 
he  had  generally  voted  with  the  organization  known  as  the 
Whig  party,  because  their  political  principles  had  usually 
been  the  same  as  his  own,  he  was  never  willing  to  be  put 
forward  on  public  occasions  as  the  spokesman  or  representa 
tive  of  any  party.  But  he  did  not  regard  this  as  such  an 
occasion.  It  was  evident  that  the  multitude  which  would 
be  assembled  for  the  purpose  of  welcoming  Mr.  Webster 
and  expressing  their  gratitude  for  his  past  and  recent  public 
services,  would  be  composed  of  citizens  of  all  parties  ex 
cepting  that  one  which  denounced  and  reproached  him. 
Mr.  Curtis  felt,  therefore,  that  he  could  and  ought  to  accede 
to  the  request  that  had  been  made  of  him,  —  that  it  was 
his  duty  to  express  publicly  to  Mr.  Webster,  for  his  fellow- 
citizens  and  himself,  the  deep  sense  which  he  believed  that 
they,  and  which  he  knew  that  he  himself,  entertained  of 
Mr.  Webster's  unequalled  exertions  and  sacrifices  for  the 
good  of  the  whole  Union.  He  believed  that  the  best  inter- 


1850.]  PUBLIC   ADDRESS    TO   MR.  WEBSTER.  115 

ests  of  Massachusetts  required  her  people  to  understand  Mr. 
Webster's  motives  and  to  approve  his  acts.  For  no  purpose 
and  no  reason  less  than  this  would  he  have  consented  to  be 
the  organ  of  any  body  of  men  whatever  in  an  address  to  any 
public  man  in  the  country.1 

Mr.  Webster  arrived  in  Boston  on  the  afternoon  of  April 
29th,  and  was  driven  in  an  open  carriage  to  his  hotel.2  The 
square  in  front  was  densely  packed  with  people.  From 
a  temporary  rostrum,  erected  for  the  occasion,  Mr.  Cur 
tis  welcomed  him  in  the  following  sincere  and  heart-felt 
address :  — 

MR.  WEBSTER,  —  These  your  fellow-citizens  have  come  here  to 
bid  you  welcome  home. 

They  desire  to  express  to  you,  by  their  presence,  their  apprecia 
tion  of  your  great  past  services  in  the  public  councils  of  the  nation. 
They  are  riot  politicians,  sir,  any  more  than  myself,  —  nor  deeply 
skilled  in  political  history ;  but  they  know  your  political  history, 
and  they  have  come  here  to  greet  you,  on  your  return  to  Mas 
sachusetts,  after  the  arduous  labors  of  the  winter,  because  they 
know  it. 

They  are  aware  that,  for  the  third  of  a  century,  during  more 
than  the  lifetime  of  a  generation  of  men,  you  have  been  serving 
their  country  with  unsurpassed  ability  and  patriotism.  These,  sir, 
are  Northern  laborers ;  for  where  is  there  a  Northern  man,  of  an 
age  to  labor,  who  is  respectable  and  respected,  who  is  not  a  laborer 
in  some  good  work?  And  they  are  not  ignorant  how  long  and 
zealously  you  have  upheld  the  rights  and  interests  of  the  labor  of  the 
country.  They  are  deeply  concerned  in  the  maintenance  of  a  safe 
currency,  and  they  recognize  the  just  and  sound  principles  which  you 
have  always  held  and  enforced  on  this  subject.  Living  almost  at  one 
of  the  extremities  of  the  country,  and  dependent  for  our  prosperity 
on  the  free  development  of  all  its  commercial  resources,  we  are  not 
unmindful  that  the  internal  improvements  of  the  whole  United 
States  have  found  in  you  a  steady  and  powerful  friend.  We  know 
also,  that  when  a  protracted  and  difficult  controversy  with  a  great 
foreign  nation  involved  the  honor  and  threatened  the  peace  of  our 

1  He  told  me  so  at  the  time,  almost   in  the  words  that  I  have  here 
used. 

2  The  Revere  House,  situated  on  Bowdoin  Square. 


116  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1850 

country,  by  your  efforts,  mainly,  its  peace  was  preserved,  and  its 
honor  maintained  with  increased  brightness. 

Allow  me  to  say  also,  sir,  that  we  never  for  one  moment  for 
get  that  we  are  citizens  of  the  American  Union,  —  that  its  peace  and 
prosperity  and  glory  are  our  peace  and  prosperity  and  glory,  — 
and  that  only  under  the  Constitution,  and  in  the  Union,  can  these 
exist  for  us  or  our  children  ;  and  therefore,  with  our  whole  hearts, 
we  say  here  and  everywhere,  that  the  friends  of  the  Constitution 
are  our  friends,  —  and  its  enemies,  whether  open  or  secret,  wilful  or 
blind,  are  our  enemies  also,  —  that  there  is  one  party  in  which  all 
minor  differences  of  opinion  and  feeling  are  merged  and  obliterated, 
and  that  is  the  party  of  the  Union.  As  members  of  that  great  party, 
sir,  we  desire  to  express  to  you  our  abiding  gratitude  for  the  ability 
and  fidelity  which  you  have  brought  to  the  defence  of  the  Constitu 
tion  and  Union  of  these  United  States. 

Recent  events  have  awakened  our  most  painful  attention  to  this 
great  subject.  You  are  well  aware,  sir,  that  it  involves  some  im 
portant  conflicting  interests,  and  still  more  conflicting  opinions  and 
feelings.  Any  attempt  to  reconcile  them  must,  for  a  time  at  least, 
be  a  cause  of  offence  to  many  honest  men.  But  even  they,  sir,  can 
scarcely  withhold  their  respect  from  manliness  which  dares  to  speak 
disagreeable  things,  and  from  the  patriotism  which  seeks,  in  the 
spirit  of  conciliation,  a  remedy  for  an  inflamed  and  disordered  state 
of  the  public  mind.  And  when  they  shall  have  waited  long  enough 
to  allow  their  judgments  somewhat  to  cool,  and  their  views  to  em 
brace  the  end  as  well  as  the  beginning,  they  may  be  expected  to 
feel  as  we  now  do,  that  we  are  not  about  to  begin  to  distrust  one 
who,  before  many  of  us  were  born,  was  eminently  vigilant,  wise,  and 
faithful  to  our  country,  and  who,  without  a  shadow  of  turning,  has 
ever  continued  so. 

You  have  for  many  years  stood  before  this  community  as  the 
expounder  and  defender  of  the  Constitution,  and  we  have  no  doubt 
that  you  will  continue  so  to  stand.  In  this  cold  Northern  soil,  con 
fidence  is  indeed  a  plant  of  slow  growth  ;  but  believe  me,  sir,  when 
it  is  grown,  it  is  not  to  be  uprooted  by  any  gusts  of  passion  or 
prejudice,  nor  blasted  by  the  breath  of  suspicion. 

Permit  me  once  more  to  say,  that  we  welcome  you  to  your 
home. 

Upon  the  close  of  this  address,  Mr.  Webster,  standing  in 
the  carriage,  his  imposing  form  in  the  full  light  of  the  de- 


1850.]  MR.  WEBSTER'S  REPLY.  117 

scending  sun,  and  in  the  sight  and  hearing  of  a  vast  assem 
bly  of  his  constituents,  made  the  following  reply :  l  — 

MR.  WEBSTER'S  REPLY. 

It  gives  me  great  pleasure  to  meet  so  large  an  assemblage  of  my 
friends  when  my  private  affairs  have  called  me  from  the  seat  of 
government  to  my  own  home.  As  you  have  said,  sir,  the  duties  of 
the  winter  in  the  public  councils  of  the  country  have  been  arduous. 
I  am  sorry  to  say  that  those  arduous  duties  are  not  done  with. 
I  am  sorry  to  say  that  the  public  affairs  of  the  country  have  not  yet 
made  so  much  progress  towards  satisfactory  adjustment  as  to  remove 
all  the  anxiety  which  has  been  felt  about  the  adjustment  of  the 
subjects  under  discussion.  But  I  feel  authorized  to  say  that  there 
is  now  reason  to  hope,  reason  to  expect,  that  further  reflection  — 
that  a  generous  comparison  of  various  wishes  where  we  disagree 
—  will  bring  about  that  improved  state  of  public  feeling  on  the 
reproduction  of  which  all  our  expectations  of  useful  discharge 
of  public  duty,  all  our  expectations  of  useful  legislation,  must 
depend. 

I  cannot  but  feel,  sir,  that  I  stand  in  the  presence  of  my  friends. 
I  must  regard  this  gathering  as  the  personal  tribute  of  your  wel 
come  to  me.  You  do  not  welcome  the  politician,  and  this  is  not 
an  opportunity  for  discussing  those  questions  which  now  agitate  the 
community  and  the  government,  —  questions  which  can  leave  little 
repose  in  the  mind  of  any  intelligent  man  till  he  can  see  some 
probability  that  from  their  discussion  an  adjustment  may  come  in 
favor  of  the  prosperity,  peace,  happiness,  and  continued  union  of 
the  country. 

Gentlemen,  I  have  felt  it  my  duty,  on  a  late  occasion,  to  make 
an  effort  to  bring  about  some  amelioration  of  that  excited  feeling 
on  this  subject  which  pervades  the  people  of  the  country  every 
where,  North  and  South ;  to  make  an  effort  also  to  restore  the 
government  to  its  proper  capacity  for  discharging  the  proper  busi 
ness  of  the  country.  For  now,  let  me  say,  it  is  unable  to  perform 
that  business.  That  it  may  regain  that  capacity,  there  is  a  neces- 

1  As  this  speech  has  not  been  hitherto  printed  in  extenso  in  a  permanent 
form,  and  can  be  found  only  in  the  newspapers  of  the  time,  I  have  here  in 
serted  it  at  length.  I  was  in  the  carriage  next  to  Mr.  Webster's,  heard 
every  word  that  he  uttered,  and  can  vouch  for  the  substantial  accuracy  of 
the  report  which  I  have  transcribed. 


118  MEMOIR   OF   BENJAMIN   ROBBINS   CUKTIS.  [1850. 

sity  for  effort  both  in  Congress  and  out  of  Congress.  Neither  you 
nor  I  sliall  see  the  legislation  of  the  country  proceed  in  the  old 
harmonious  way  until  the  discussions  in  Congress  and  out  of 
Congress,  upon  the  subjects  to  which  you  have  alluded,  shall  be 
in  some  way  suppressed.  Take  that  truth  home  with  you,  —  and 
take  it  as  truth !  Until  something  can  be  done  to  allay  the  feel 
ing  now  separating  men  and  different  sections,  there  can  be 
no  useful  and  satisfactory  legislation  in  the  two  houses  of  Con 
gress. 

Mr.  Curtis,  and  gentlemen,  the  Commonwealth  of  Massachu 
setts  has  done  me  the  honor  to  place  me  as  her  representative  — 
as  one  of  her  representatives  —  in  Congress.  I  have  believed  that 
she  would  approve  in  nie  any  honest,  conscientious,  and  sincere 
effort  to  allay  the  dissension  which  we  see  among  the  people  of  the 
country,  and  to  restore  Congress  to  its  constitutional  capacity  for 
action.  I  have  believed  that  the  Commonwealth  of  Massachusetts 
would  support  her  representatives  in  that  course.  I  have  believed 
that  the  general  sentiment  of  the  whole  country  would  favor  and 
encourage  their  efforts  to  this  end ;  and  I  have  the  satisfaction  now 
to  believe  that  in  that  hope  I  shall  not  be  disappointed.  However 
that  may  be,  that  effort  I  shall  repeat.  In  that  course  of  pacifi 
cation  I  shall  persevere,  regardless  of  all  personal  consequences. 
I  shall  minister  to  no  local  prejudices.  I  shall  support  no  agi 
tations  having  their  foundations  in  unreal,  ghostly  abstractions. 
I  shall  say  nothing  which  may  foster  the  unkind  passions  separat 
ing  the  North  from  the  South.  May  my  tongue  cleave  to  the  roof 
of  my  mouth  before  it  may  utter  any  sentiment  which  shall  increase 
the  agitation  in  the  public  mind  on  such  a  subject. 

Sir,  I  have  said  that  this  is  not  an  occasion  for  political  discus 
sion.  I  confess  that,  if  the  time  and  circumstances  gave  an  op 
portunity,  I  should  not  be  indisposed  to  address  the  people  of 
Massachusetts  directly  upon  the  duty  which  the  present  exigencies 
of  affairs  have  devolved  upon  her,  —  upon  this  great  and  glorious 
Commonwealth,  —  upon  the  duty,  at  least,  which  it  devolves  upon  us 
who  represent  her  in  the  national  legislature.  I  shall  have  occa 
sion,  in  my  seat  in  the  Senate,  to  which  I  shall  immediately  return, 
to  give  my  opinions  upon  some  topics  of  an  interesting  charac 
ter,  —  topics  in  regard  to  some  of  which  there  exist  both  mis- 
statements  and  misapprehension,  —  the  greatest  misstatement,  the 
greatest  misapprehension,  especially  so  far  as  I  am  concerned.  I 


1850]  MR.  WEBSTER'S  REPLY.  119 

may  simply  mention  one  of  these.  It  is  the  question  respecting  the 
delivery  of  fugitives  from  service.  With  regard  to  that  question 
there  exist  the  greatest  prejudices,  —  the  greatest  misapprehen 
sions.  I  do  not  wonder  at  these  misapprehensions.  I  am  well 
aware  that  this  is  a  topic  which  must  excite  prejudices.  I  can  very 
well  feel  what  the  prejudices  are  which  must  naturally  start  up  in 
the  minds  of  the  good  people  of  this  Commonwealth.  But,  Mr. 
Curtis,  and  gentlemen,  there  are  in  regard  to  that  topic  duties  ab 
solutely  incumbent  on  the  Commonwealth,  —  duties  imposed  by  the 
Constitution,  —  absolutely  incumbent  on  every  person  who  holds 
office  in  Massachusetts  under  her  own  constitution  and  laws,  or 
under  those  of  the  nation.  She  is  bound,  and  those  persons  are 
bound,  to  the  discharge  of  a  duty,  —  of  a  disagreeable  duty.  We  call 
upon  her  to  discharge  that  duty  as  an  affair  of  high  morals  and  high 
political  principles.  We  ask  her  to  resolve  upon  the  performance  of 
duty,  though  it  be  a  disagreeable  duty.  Any  man  can  perform  an 
agreeable  duty,  —  it  is  not  every  man  who  can  perform  a  dis 
agreeable  duty.  Any  man  can  do  what  is  altogether  pleasant. 
The  question  is  whether  Massachusetts,  —  whether  the  old  State  of 
Massachusetts,  improved  by  two  centuries  of  civilization,  renowned 
for  her  intellectual  character,  mighty  in  her  moral  power,  conspicuous 
before  the  world,  a  leading  State  in  this  country  ever  since  it  was 
a  country,  a  leading  State  in  the  Union  ever  since  it  was  a  Union, 
—  the  question  is,  whether  Massachusetts  will  shrink  from,  or 
will  come  up  to,  a  fair  and  reasonable  and  moderate  performance 
(and  no  more  than  a  fair  and  reasonable  and  moderate  perform 
ance)  of  her  sworn  obligations. 

I  think  she  will. 

Sir,  the  question  is,  whether  Massachusetts  will  stand  to  the 
truth,  against  temptation,  —  whether  she  will  be  just,  against 
temptation,  —  whether  she  will  defend  herself  against  her  own 
prejudices.  She  has  conquered  every  thing  else  in  her  time  ;  she 
has  conquered  this  ocean  which  washes  her  shore  ;  she  has  con 
quered  her  own  sterile  soil ;  she  has  conquered  her  stern  and  in 
flexible  climate ;  she  has  fought  her  way  to  the  universal  respect 
of  the  world ;  she  has  conquered  everybody's  prejudices  but  her 
own.  The  question  now  is,  whether  she  will  conquer  her  own 
prejudices.  I  shall  return  to  the  Senate  to  put  that  question  to 
her,  in  the  presence  of  our  common  mother,  who  will  address  it  to 
her  heart. 


120  MEMOIR    OF   BENJAMIN   ROBBINS    CURTIS.  [1850. 

In  the  mean  time,  let  me  repeat  that  I  tread  no  step  backwards. 
I  am  devoted  to  the  restoration  of  peace,  harmony,  and  concord 
out  of  Congress,  and  such  a  degree  of  mutual  co-operation  in  Con 
gress  as  may  enable  it  to  carry  on  once  more  the  legitimate  business 
of  the  government. 

The  Union  for  the  preservation  of  which  I  strive,  the  union  of 
States  for  which  I  strive,  is  not  merely  a  union  of  law,  of  consti 
tution,  of  compact ;  but  while  it  is  that,  it  is  a  union  of  brotherly 
regard,  of  fraternal  feeling  throughout  the  whole  country.  I  do 
not  wish  that  any  portion  of  the  people  of  this  country  shall  feel 
held  together  only  by  the  bonds  of  a  legal  corporation,  —  bonds  which 
some  of  them  may  think  restrain  their  limbs,  —  cramp  their  affec 
tions,  —  gall  and  wound  them.  I  wish,  on  the  contrary,  that  they 
shall  be  bound  together  by  those  unseen,  soft,  easy-sitting  chains 
that  result  from  generous  affections,  and  from  a  sense  of  common 
interest  and  common  pride.  In  short,  fellow-citizens,  my  desire  is, 
and  my  labor  is,  to  see  that  state  of  things  produced  in  which  — 
filling  all  bosoms  with  gratitude,  all  hearts  with  joy,  illuminating 
all  faces,  spreading  through  all  ranks  of  people,  whether  rich  or 
poor,  whether  North,  South,  East,  or  West  —  there  shall  exist  the 
balm  of  all  our  sufferings,  the  great  solace  of  all  our  political 
calamities,  the  great  security  of  every  thing  prosperous,  and  great, 
and  glorious  in  the  future  ;  —  and  that  is,  THE  UNITED  LOVE  OF  A 

UNITED    GOVERNMENT. 

The  Compromise  Measures  finally  became  laws  in  the 
month  of  September,  1850.  Throughout  that  summer,  the 
agitation  of  the  subject  of  the  surrender  of  fugitive  slaves 
had  continued  to  increase  in  Massachusetts,  the  head-quar 
ters  of  most  of  the  excitement  being  in  Boston.  The  ques 
tion  whether  Mr.  Webster  was  to  be  sustained  by  the 
public  sentiment  of  the  State,  became  of  comparatively  less 
importance  than  the  question  whether  the  State  was  to 
array  itself  in  open  opposition  to  a  provision  of  the  Con 
stitution.  What  might  be  the  political  fate  or  fortunes  of 
an  individual  statesman,  however  interesting  or  important, 
was  of  less  consequence  than  the  issue  whether  the  people 
of  Massachusetts  were  to  refuse  to  be  bound  by  a  part  of 
the  Constitution  of  the  United  States,  which  was  at  once  a 


1850.]  FUGITIVE   SLAVE   EXCITEMENT.  121 

compact  between  the  States  and  a  command  of  the  supreme 
law  of  the  land.  The  details  of  the  law  of  Congress, 
which  had  been  recently  enacted  for  the  more  effectual  exe 
cution  of  the  Constitution,  became  comparatively  insignifi 
cant  in  the  presence  of  the  transcendent  question  whether 
the  Constitution  was  to  be  obeyed.  The  Constitution  itself 
was  assailed:  its  moral  foundations  were  assaulted.  The 
doctrine  was  broached  that  the  compact,  made  in  1788,  by 
which  it  was  solemnly  stipulated  between  the  States  that 
fugitives  from  service  should  be  surrendered,  was  immoral 
and  unfit  to  be  observed.  Sermons  were  preached,  incul 
cating  principles  of  action  utterly  inconsistent  with  the 
duty  of  civil  obedience.  The  rash  and  inconsiderate  were 
excited  to  a  state  bordering  upon  frenzy  ;  and  many  good 
men  were  perplexed  by  doubts  about  the  obligations  im 
posed  by  a  fundamental  law,  which  recognized  the  idea  of 
property  in  human  beings. 

In  this  state  of  things,  in  a  community  possessing  many 
classes  peculiarly  prone  to  mistake  the  moral  foundations 
of  a  civil  obligation  distasteful  to  their  feelings,  it  was 
clearly  necessary  that  some  one  should  treat  the  subject 
from  a  point  of  view  different  from  that  ordinarily  taken 
by  political  men.  The  politician  could  argue,  and  could 
argue  truly  and  sincerely,  that  the  Constitution  required 
the  performance  of  a  certain  duty ;  and  that  to  remain 
under  it  and  to  claim  the  benefit  of  its  powers,  and  to 
refuse  to  perform  a  part  of  its  obligations,  was  both 
inconsistent  with  the  honor  of  a  rational  people,  and  in 
the  highest  degree  impolitic.  He  was  answered  with 
the  passionate  outcry  that  the  Constitution  was  in  this 
respect  a  u  bond  of  iniquity,"  unfit  to  bind  a  moral  and 
religious  people,  —  a  " covenant  with  hell"  which  ought  to 
be  broken. 

How  Mr.  Curtis  viewed  this  matter,  and  how  carefully 
he  had  considered  it,  will  appear  from  a  letter  which  he 
had  occasion  to  write  to  a  friend  who  had  endeavored  to 


122  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1850. 

reach  the  minds  of  a  certain  class  of  persons  who  occupied 
a  sort  of  middle  ground  on  this  subject. 

SUNDAY  MORNING. l 

DEAR  .  .  .  ,  —  I  was  sorry  that  a  peremptory  engagement  pre 
vented  me  from  reading  your  article  in  manuscript ;  but  when  I 
saw  it  in  the  "  Advertiser,"  I  found  there  was  not  the  smallest  rea 
son  that  I  should  do  so.  It  is  as  accurate  in  its  legal  as  its  moral 
principles.  It  cannot  but  do  much  good.  I  wish  its  ideas  could 
be  repeated  and  enforced  everywhere  in  New  England.  There 
are  many  political  principles  with  which  our  people  are  well  ac 
quainted,  and  there  is  an  intuitive  disposition  to  obey  the  laws  very 
prevalent  among  them ;  but  that  the  Constitution  of  the  United 
States  is  a  law,  —  binding  by  each  clause  the  conduct  of  every 
man  in  the  country  in  the  particular  to  which  such  clause  relates, 
equally  obligatory  whether  obeyed  or  disobeyed,  —  that  organized 
disobodience  is  rebellion,  and,  if  force  is  used,  insurrection  or  revo 
lution  according  to  the  event,  —  are  things  which  a  great  many  of 
the  teachers  of  political  morals,  of  the  present  day,  do  not  seem  to 
have  taken  into  their  minds  at  all. 

I  blame  no  one  for  arriving  at  the  opinion,  either  by  reasoning 
or  impulse,  that  fugitive  slaves  ought  not  to  be  restored  to  their 
masters.  But  having  arrived  at  this  opinion,  there  remains  another 
step  ;  and  I  wish  these  Unitarian  clergymen  would  sit  down  calmly 
and  measure,  or  attempt  to  measure,  its  length,  and  look  as  steadily 
as  they  can,  for  one  moment  at  least,  into  the  place  where  that  step 
must  carry  us. 

I  want  to  see  somebody  come  manfully  up  to  the  point,  and 
attempt  to  show  that  the  moral  duty  which  we  owe  to  the  fugitive 
slave,  when  in  conflict  with  the  moral  duty  we  owe  to  our  country 
and  its  laws,  is  so  plainly  superior  thereto,  that  we  may  and  ought 
to  engage  in  a  revolution  on  account  of  it.  I  should  be  glad  to 
see  this  attempted,  because  it  presents  the  true  issue,  and  I  am  sure 
the  attempt  must  fail.  Wendell  Phillips  and  his  followers  have 
taken  the  only  sound  ground ;  and  their  success  in  maintaining  it 
does  not  seem  to  be  very  encouraging  to  others  to  join  them  there  ; 
nor  do  these  gentlemen  intend  to  do  so.  They  are  entirely  un 
aware  of  their  own  true  position,  —  or  rather  they  were  so;  if  they 
have  read  your  article,  they  can  hardly  be  so  any  longer. 

1  The  letter  is  without  other  date,  but  the  context  places  it  in  the  period 
soon  after  the  enactment  of  the  Fugitive  Slave  Law  in  1850. 


1850.]  SPEECH   IN  FANEUIL  HALL.  123 

I  return  the  books  you  lent  me  the  other  day,  and  also  two  vol 
umes  of  pamphlets  about  the  College,  which  1  have  kept  a  good 
while,  as  I  have  wanted  to  refer  to  them,  and  supposed  you  did 
not. 

Yours  faithfully,  B.  R.  CURTIS. 

Not  long  after  this  letter  was  written,  a  public  meeting 
was  held  in  Faneuil  Hall,  according  to  the  custom  of  that 
people  when  grave  questions  were  to  be  acted  upon,  to 
consider  and  discountenance  the  spirit  of  disobedience  to 
the  laws  of  the  land,  which  seemed  to  be  so  rife  and  so 
fraught  with  dangerous  consequences.  It  was  an  imposing 
assemblage,  in  point  of  the  character  of  those  who  took 
part  in  its  proceedings,  and  in  the  respectability  and  intel 
ligence  of  the  thousands  who  "thronged  the  venerable  build 
ing.  There  was  at  all  times  something  peculiar  in  the 
characteristics  of  a  Faneuil  Hall  audience,  when  it  had 
been  assembled  on  the  call  of  citizens  commanding  the 
public  confidence,  to  act  upon  matters  that  rose  in  dignity 
above  party  discussions.  Nowhere  could  a  great  popular 
assembly  be  found  that  more  quickly  appreciated,  or  more 
instantly  understood,  or  more  closely  followed,  an  argument 
addressed  to  the  reason  and  conscience  of  intelligent  men. 

Perhaps  there  has  been  nothing  in  modern  times  more 
like  the  discussions  in  Athens  before  the  whole  body  of  the 
citizens,  than  has  sometimes  been  witnessed  in  Faneuil 
Hall,  when  there  was  no  object  to  be  promoted  less  than 
the  good  and  the  duty  of  the  whole.1  It  was  on  such  an 
occasion,  and  to  such  an  audience,  that  Mr.  Curtis  made  the 
following  address  :  2  — 

It  is  a  source  of  great  satisfaction  to  me  that  I  can  stand  here 
and  say,  not  fellow  Whigs  or  Democrats,  but  fellow-citizens ;  — 

1  The  same  remark    lias   been  made  by   Mr.    Tieknor  in  reference   to 
the  town  meetings  in  Boston,  which  he  witnessed  during  the  war  of  1812. 
I  can  bear  witness  to  meetings  of  the  same  character  at  a  much  later  period. 

2  Proceedings  of  the  Constitutional  Meeting  at  Faneuil  Hall,  Nov.  26, 
1850. 


124  MEMOIR   OF   BENJAMIN  BOBBINS   CUKTIS.  [I860. 

that  here  I  can  meet  on  common  ground,  in  an  important 
emergency,  those  who  have  a  common  interest  with  me  in  the 
country.  For  I  understand  we  have  come  here,  not  to  consider 
particular  measures  of  government,  but  to  assert  that  we  have  a 
government ;  not  to  determine  whether  this  or  that  law  be  wise  or 
just,  but  to  declare  that  there  is  law,  and  its  duties  and  power ; 
not  to  consult  whether  this  or  that  course  of  policy  is  beneficial  to 
our  country,  but  to  say  that  we  yet  have  a  country,  and  intend  to 
keep  it  safe.  These  are  the  objects  for  which  I  understand  we 
have,  as  American  citizens,  here  met ;  and,  for  my  own  part,  I  can 
not  think  we  have  come  together  too  soon. 

There  is  a  very  excited  state  of  the  public  mind  all  over  the 
country.  It  grows  out  of  a  subject  of  the  last  importance,  —  so 
connected  with  the  interests  and  sentiments  and  passions  of  our 
countrymen  as  to  make  it  difficult  for  the  wisest  and  coolest  on 
either  side  to  restrain  themselves  within  the  limits  of  prudence  and 
moderation.  Many  good  men  among  us,  with  very  tender  con 
sciences  but  not  very  sound  practical  judgments,  —  apparently  not 
at  all  aware  of  the  direction  in  which  they  are  moving,  or  of  the 
results  to  which  they  are  tending,  believing  themselves  to  be  as 
harmless  as  doves,  and  feeling,  no  doubt,  quite  sure  they  are  as 
wise  as  serpents,  —  have  plunged  into  this  contest.  Others',  who 
love  excitement  or  notoriety,  or  influence  and  power,  or  who  are 
smarting  under  disappointment,  have  found  here  a  new  field  of 
promise.  Others  still,  whose  daily  food  is  contention,  and  whose 
daily  drink  is  the  waters  of  strife,  have  rushed  hither  as  into  a 
quarrel,  and  brought  with  them  temper  and  feelings  which  have 
been  justly  characterized  as  "  malignant  philanthropy."  While 
influencing  more  or  less  all  these,  and  thousands  of  others  who 
have  suffered  themselves  to  be  led  into  this  excitement,  and  lend 
ing  a  certain  dignity  and  power  even  to  the  bad  passions  which  are 
enlisted,  is  that  deep  and  ineradicable  love  of  human  liberty  which 
beats  in  every  throb  of  every  heart  of  the  true  sons  of  New 
England. 

And  when  we  add  to  all  this,  that  the  people  of  other  parts  of 
our  country,  having  opposite  interests  and  passions,  —  who,  I  be 
lieve,  have  never  been  remarkable  for  letting  that  excellent  virtue 
called  moderation  be  known  unto  all  men,  —  have,  upon  this  subject, 
used  language  and  manifested  feelings  and  done  acts  which  I  am 
sure  wise  and  good  men  everywhere  must  deeply  regret,  and  that 


1850.]  SPEECH   IN   FANEUIL   HALL.  125 

these  things  have  produced  their  natural  consequences  here,  —  we 
may  not  be  greatly  surprised,  however  deeply  we  may  be  con 
cerned,  at  the  existing  state  of  things. 

In  my  humble  judgment,  it  is  a  state  of  things  calling  for  the 
sober  and  careful  consideration  of  good  citizens  of  all  parties  in  the 
State,  and  for  the  public  expression  of  a  well-considered,  temper 
ate,  but  fixed  opinion  thereon. 

In  times  of  public  danger  it  was  the  usage  of  our  fathers  to  come 
together  in  this  hall  to  embody  and  express  the  public  sentiment 
of  this  people  concerning  their  important  affairs.  Is  not  this  an 
occasion  on  which  we  may  well  imitate  their  example? 

There  has  been  heard  within  these  walls,  addressed  to  a  public 
meeting,  and  received  with  approbation  by  that  meeting,  the 
declaration  that  an  article  of  the  Constitution  of  the  United  States 
shall  not  be  executed,  law  or  no  law.  A  gentleman  offered  a  re 
solve,  which  passed  at  a  public  meeting  here,  that,  "  Constitution  or 
no  Constitution,  law  or  no  law,  we  will  not  allow  a  fugitive  slave 
to  be  taken  from  Massachusetts."  Here  and  elsewhere  have  been 
publicly  uttered  exhortations  to  violent  resistance  to  law,  and 
assurances  of  aid  and  succor  in  maintaining  such  resistance.  The 
chairman  of  a  public  meeting  declared  here  that  "  the  law  will 
be  resisted,  and  if  the  fugitive  resists,  and  if  he  slay  the  slave- 
hunter,  or  even  the  Marshal,  and  if  he  therefore  be  brought  before 
a  jury  of  Massachusetts  men,  that  jury  will  not  convict  him." 
Here  and  elsewhere  has  been  promulgated  the  idea,  that  it  is  fit 
and  proper  for  strangers  coming  from  abroad  on  to  our  soil  to  put 
themselves  upon  their  natural  rights,  viewed  according  to  their 
own  human  light,  and  by  that  light  arm  and  resist  unto  blood  the 
execution  of  the  law  of  the  Commonwealth.  I  speak  not  of  any 
law  of  Congress,  but  of  the  Constitution,  the  supreme  law  of  the 
land.  The  chairman  of  a  public  meeting  here  has  ventured  to 
assure  such  persons  that  judges  and  jurors  will  violate  their  oaths 
to  protect  them  from  punishment ;  and  as  if  there  should  be  nothing 
wanting  to  exhibit  the  madness  which  has  possessed  men's  minds, 
murder  and  perjury  have  been  erected  into  virtues,  and  in  this  city 
preached  from  the  sacred  desk.  I  must  not  be  suspected  of  ex 
aggerating  in  the  least  degree.  I  read,  therefore,  the  following 
passage  from  a  sermon  preached  and  published  in  this  city :  — 

Let  me  suppose  a  case  which  may  happen  here,  and  before  long.  A  woman 
flies  from  South  Carolina  to  Massachusetts  to  escape  from  bondage.  Mr. 


126  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1850. 

Greathoart  aids  her  in  her  escape,  harbors  and  conceals  her,  and  is  brought 
to  trial  for  it.  The  punishment  is  a  fine  of  one  thousand  dollars  and  impris 
onment  for  six  months.  I  am  drawn  to  serve  as  a  juror  and  pass  upon  this 
offence.  I  may  refuse  to  serve  and  be  punished  for  that,  leaving  men  with 
no  scruples  to  take  my  place,  or  I  may  take  the  juror's  oath  to  give  a  ver 
dict  according  to  the  law  and  the  testimony.  The  law  is  plain,  let  us  sup 
pose,  and  the  testimony  conclusive.  Greatheart  himself  confesses  that  he  did 
the  deed  alleged,  saving  one  ready  to  perish.  The  judge  charges  that,  if  the 
jurors  are  satisfied  of  that  fact,  then  they  must  return  that  he  is  guilty.  This 
is  a  nice  matter.  Here  are  two  questions.  The  one  put  to  me  in  my  official 
capacity  as  juror  is  this,  —  "  Did  Greatheart  aid  the  woman  ?  "  The  other, 
put  to  me  in  my  natural  character  as  man,  is  this,  —  "  Will  you  help  to 
punish  Greatheart  with  fine  and  imprisonment  for  helping  a  woman  to  ob 
tain  her  unalienable  rights  ?  "  If  I  have  extinguished  my  manhood  by  my 
juror's  oath,  then  I  shall  do  my  official  business  and  find  Greatheart  guilty, 
and  I  shall  seem  to  be  a  true  man  ;  but  if  I  value  my  manhood,  I  shall 
answer  after  my  natural  duty  to  love  a  man  and  not  hate  him,  to  do  him 
justice,  not  injustice,  to  allow  him  the  natural  rights  he  has  not  alienated, 
and  shall  say,  "  Not  guilty."  Then  men  will  call  me  forsworn  and  a  liar,  but 
I  think  human  nature  will  justify  the  verdict.  .  .  . 

The  man  who  attacks  me  to  reduce  me  to  slavery,  in  that  moment  of 
attack  alienates  his  right  to  life,  and  if  I  were  the  fugitive,  and  could  escape 
in  no  other  way,  I  would  kill  him  with  as  little  compunction  as  I  would 
drive  a  mosquito  from  my  face.1 

I  should  like  to  ask  the  reverend  preacher,  when  he  goes  into 
court,  and  holds  up  his  hand,  and  calls  on  his  Maker  to  attest  the 
sincerity  of  his  vow  to  render  a  true  verdict  according  to  the  law 
and  the  evidence,  whether  he  does  that  as  a  man,  or  in  some  other 
capacity?  And  I  should  also  like  to  ask  him,  in  what  capacity  he 
would  expect  to  receive  the  punishment  which  would  await  him  here 
and  hereafter,  if  he  were  to  do  what  he  recommends  to  others  ? 

Is  it  riot  time  that  they  who  love  their  country,  and  respect  the 
laws,  should  come  together  and  soberly  ponder  these  things  ? 

If  a  case  exists  which  demands  a  breach  of  a  fundamental  law 
of  the  government,  and  justifies  armed  resistance  by  individuals,  it 
is  a  case  for  revolution,  and  it  is  time  we  knew  and  acted  on  it. 

If  there  is  not  such  a  case,  then  this  language,  and  the  feelings 
that  prompt  it,  and  the  conduct  which  accompanies  it,  disgrace  our 
community,  and  endanger  its  safety  and  peace,  and  should  receive 
the  rebuke  of  every  good  citizen.  There  is  no  middle  ground 
between  these  two  alternatives.  If  there  is  a  case  for  forcible 
resistance  of  law,  for  refusal  to  execute  one  article  in  the  compact 
which  constitutes  the  government,  for  vilifying  this  compact  by 

1  A  Sermon  of  Conscience,  by  Rev.  Theodore  Parker. 


1850-1  SPEECH  IN  FANEUIL  HALL.  127 

names  which  I  should  be  unwilling  to  repeat,  for  stirring  up  the 
angry  passions  of  men,  and  arraying  one  part  of  the  country  against 
another  part,  it  can  be  nothing  less  than  a  case  for  revolution,  and 
in  a  revolution  it  must  end,  if  its  progress  be  not  checked. 

Now  I  understand  that  those  who  act  in  concert  on  this  subject 
are  divisible  into  two  classes.  One  class  openly  avow  that  this 
is  a  case  for  revolution.  They  say  the  Constitution  of  the  United 
States  contains  an  article  which  is  immoral,  and  must  not,  under 
any  circumstances,  be  obeyed;  —  that  as  honest  men  they  cannot 
undertake  to  abide  by  this  compact,  with  a  mental  reservation 
that  they  will  break  an  important  part  of  it.  And  therefore  they 
reject  the  whole,  and  hold  it  to  be  the  duty  of  this  Common 
wealth  to  withdraw  itself  instantly  from  this  whole  compact,  and 
thus  revolutionize  the  government.  This  is  the  ground  of  action 
and  the  end  of  one  class,  —  the  ground  of  action  being,  that  there 
is  a  fundamental  error  in  the  Constitution  of  the  government,  and 
the  end,  that  the  government  must  be  destroyed. 

Whatever  else  may  be  said  of  this,  it  cannot  be  denied  that  it 
is  open,  definite,  tangible,  capable  of  being  seen  and  understood 
in  its  true  proportions.  These  persons  do  not  profess  one  thing 
and  mean  another.  They  do  not  move  blindly  towards  the  gulf 
of  civil  discord  and  national  destruction.  They  do  not  lead  their 
followers  towards  it  with  boastful  assurances  that  the  ground  is 
safe  and  clear.  They  see  treason,  and  they  honestly  say  so,  and 
give  their  reason  for  it. 

In  my  humble  judgment,  it  is  time  that  reason  were  examined. 
You  may  say  it  needs  no  examination  ;  the  bare  statement  of  the 
proposition  carries  its  own  refutation  with  it.  So  I  had  sup 
posed,  until  recent  events  changed  my  opinion.  I  do  not  think 
it  important  to  examine  their  reason,  because  I  entertain  any 
hope  of  influencing  any  of  this  class  of  men  whom  I  have  men 
tioned.  I  believe  their  passions  are  too  much  excited.  But 
there  is  another  larger  class  who  are  now  acting  with  them,  many 
of  whom,  I  verily  believe,  do  not  see  whither  they  are  going. 
These  have  not  thrown  off  their  allegiance  to  the  Constitution. 
On  the  contrary,  many  of  them  hold,  or  have  held,  public  office, 
and  have  sworn  to  support  the  Constitution.  Many  more,  if  we 
may  judge  from  the  recent  elections,  desire  earnestly  to  take  that 
oath.  1  am  bound  to  think,  and  do  think,  they  have  taken  this 
oath  without  any  mental  reservation.  They  include  in  it  that  article 


128  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1850. 

which  promises  that  fugitives  from  service  escaping  into  this  State 
shall  be  given  tip.  But  ask  your  Free-Soil  neighbors,  "  Will  you 
give  your  support  to  a  law  which  shall  fairly  and  fully  execute 
this  article,  —  you  are  dissatisfied  with  the  present  law,  but,  laying 
aside  all  questions  about  means  and  details,  do  you  mean  that 
Massachusetts  shall  keep  this  promise,  or  break  it  ?  "  —  and  depend 
upon  it,  if  you  get  any  answer  at  all,  it  will  be  that  it  is  a  promise 
not  fit  to  be  kept. 

I  do  not  mean  to  say  that  all  would  so  answer.  Some  have 
not  sufficiently  probed  their  own  consciences  to  know  what  lies 
at  the  bottom,  and  some  who  have  may  be  willing  to  have  this 
article  executed.  I  hope  there  are  many  such.  But  I  do  believe 
that,  when  it  comes  to  the  practical  question,  whether  the  promise 
shall  be  kept,  many  will  be  found  in  the  condition  in  which  Sir 
William  Blackstone  says  he  was  in  respect  to  a  belief  in  witch 
craft.  For,  says  he,  in  substance,  inasmuch  as  both  the  Scriptures 
and  the  laws  of  England  recognize  the  crime  of  witchcraft,  I 
cannot  take  it  upon  myself  to  deny  that  there  has  been  such  a 
thing,  though  I  cannot  give  credit  to  any  particular  modern  instance 
of  it. 

So  it  is  with  some  of  these  gentlemen.  Inasmuch  as  the  Con 
stitution,  which  many  of  them  have  sworn  to  support,  contains 
an  express  promise  that  fugitives  from  service  shall  be  given  up, 
they  cannot  take  it  upon  themselves  to  deny,  in  the  general,  that 
the  promise  is  to  be  kept ;  but  as  to  its  being  done  in  any  particu 
lar  way,  or  by  any  particular  means,  or  in  any  modern  instance, 
they  cannot  consent,  and  to  prevent  it  they  are  ready  to  join 
their  best  and  utmost  exertions  to  those  of  the  first  class  whom  I 
have  named,  though  these  latter  all  the  time  declare  that  this  dis 
tinction  between  the  abstract  and  the  concrete  is  too  thin  for  their 
eyes  to  see. 

Now  the  real  difficulty  with  both  these  classes  of  persons  is  the 
same.  The  difference  between  them  is,  that  one  sees  it  arid  avows 
it ;  the  other  does  not  see  it,  or  is  too  prudent  to  avow  it. 

Is  it  not  fit,  then,  that  this  supposed  difficulty  should  be  brought 
out  into  the  light  of  day  and  steadily  looked  at  ?  There  ought  to 
be  no  reluctance  to  do  this.  If  the  difficulty  be  real,  it  should  be 
acknowledged,  and  due  effect  given  to  it.  If  it  be  unreal,  it  should 
be  dissipated.  If  the  Constitution  under  which  we  live  is,  —  as  is 
expressed  in  the  calm  language  so  well  befitting  the  discussion  of  a 


1850.]  SPEECH   IN   FANEUIL   HALL.  129 

subject  deeply  involving  the  welfare  of  so  many  millions  of  people, 
—  if  it  be  a  u  bond  of  hell  "  which  it  is  the  duty  of  every  just  man 
to  break,  we  ought  to  know  it  and  act  on  it. 

I  hope  you  will  bear  with  me,  therefore,  fellow-citizens,  while  I 
attempt  to  discuss  this  question. 

I  am  a  Massachusetts  man, — born  on  her  soil,  bred  in  her 
schools,  partaking,  from  my  infancy  to  this  hour,  of  the  blessings 
which,  under  Providence,  flow  from  and  are  secured  by  her  laws,  — 
and  I  hope  I  am  not  unmindful  of  the  honor  and  the  duty  of  the 
State.  And  I  feel  with  you  a  common  interest  to  inquire,  whether, 
when  this  Commonwealth  entered  into  this  compact,  and  agreed 
that  it  should  be  the  supreme  law,  it  made  a  covenant  of  iniquity. 

Let  me  say,  at  the  outset,  that  this  is  not  a  question  to  be  settled 
by  calling  hard  names.  It  is  a  moral  question,  to  be  approached 
with  calmness  and  solved  by  the  reason  and  judgment  of  sober  men. 
And  I  shall  endeavor  to  state,  as  well  as  I  can,  that  course  of 
reasoning  which  has  satisfied  my  own  mind. 

Let  me  begin  by  asking  you  to  keep  in  view  that  we  are  consid 
ering  the  rights  and  duties  of  a  civilized  state.  The  question  is, 
whether  this  Commonwealth  acted  within  the  bounds  of  right,  in 
1788,  when  it  entered  into  the  compact  in  question. 

At  that  time  Massachusetts  was  an  independent,  sovereign  state, 
possessing,  of  course,  all  the  powers  over  its  own  citizens  in  refer 
ence  to  foreign  states  which  constitute  and  arise  from  sovereignty. 

Among  these  powers,  two  only  are  important  here :  the  power 
to  make  binding  compacts  with  other  states,  and  the  power  to 
determine  what  persons  from  abroad  shall  be  admitted  to,  or  ex 
cluded  from,  the  territorial  limits  of  the  state,  and  on  what  terms 
and  conditions  any  such  persons  shall  be  allowed  to  come,  or  be 
required  to  depart.  Both  these  powers  are  unquestionable.  For 
centuries  a  succession  of  great  minds  have  been  employed  upon 
this  subject  of  public  law.  Beginning  with  Grotius,  above  two 
hundred  years  ago,  and  ending  with  our  countryman  Wheaton,  who 
died  in  this  city  two  years  ago,  or  with  Lieber,  if  you  please,  who 
still  lives,  I  believe  there  cannot  be  found  anywhere  a  set  of  more 
profound,  wise,  humane  Christian  moralists  than  these  ;  —  men  of 
great  boldness  of  mind,  restrained  by  no  positive  rules,  seeking  the 
moral  truth  of  the  great  subjects  they  have  discussed  by  the  best 
lights  of  divine  and  human  wisdom. 

Yet  not  one  of  them,  so  far  as  I  know,  has  ever  doubted  that  the 
VOL.  i.  9 


130  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1850 

powers  which  1  have  mentioned  rightfully  exist  and  are  necessary 
for  the  preservation  of  every  civilized  state. 

There  is  another  principle  equally  clear,  and  that  is,  that  every 
state  may  and  should  exercise  its  powers  for  its  own  preservation, 
and  the  advancement  of  the  welfare  of  its  own  citizens. 

Indeed,  outside  of  this  exciting  subject,  all  these  principles  are 
not  only  unquestioned,  but  they  have  been  acted  on  by  this 
Commonwealth,  over  and  over  again,  to  the  acceptance  of  every 
body. 

As  early  as  1793,  this  Commonwealth  passed  a  law  prohibiting, 
under  a  severe  penalty,  any  shipmaster  from  landing  in  this  State 
any  foreign  convict ;  and  this  has  ever  since  been,  and  is  now,  the 
law.  What  right  had  the  State  to  pass  this  law  ?  The  right  to 
protect  its  public  peace,  and  the  persons  and  property  and  morals 
of  its  citizens  ;  and  to  exercise  its  own  discretion  as  to  what  per 
sons  from  abroad  might  prove  injurious  to  either. 

In  1830,  it  was  found  Ireland  was  pouring  upon  our  shores  a  tide 
of  pauperism  and  disease.  The  victims  of  centuries  of  oppression 
and  wrong  came  hither  to  seek  relief  and  succor.  Poor-houses  and 
hospitals  were  emptied  of  their  contents,  which,  at  the  public  ex 
pense,  were  transported  hither.  Did  any  man  doubt  the  rightful 
authority  of  the  Legislature  to  put  a  stop  to  this ;  to  say  that  these 
persons,  however  ground  down  by  oppression  and  distress  at  home, 
must  not  be  thrown  upon  our  hands?  No  one,  that  I  ever  heard 
of,  doubted  it.  On  the  contrary,  very  stringent  laws  were  passed, 
which  we  have  been  struggling  ever  since  to  maintain  against  the 
exclusive  power  of  Congress  over  commerce.  What  right  has  the 
State  to  pass  these  laws  ?  I  answer  again,  the  right  of  self-protec 
tion  ;  the  right  to  determine  what  persons  from  abroad  shall  be 
admitted  to  its  territory ;  the  right  to  use  its  own  discretion  and 
consult  the  safety  and  welfare  of  its  citizens  in  admitting  or  exclud 
ing  them. 

Let  me  borrow  an  illustration  out  of  this  very  subject  of  slavery. 
We  all  know  that  in  every  slave-holding  State  there  are  thousands 
of  slaves  who,  from  age,  disease,  or  infirmity,  are  mere  burthens. 
Now,  we  have  heard  some  angry  talk  about  retaliatory  legislation. 
Suppose  Carolina  and  Georgia  should  pass  laws  that,  if  any  such 
aged,  diseased,  or  infirm  slaves  desired,  with  the  consent  of  their 
masters,  to  come  to  Massachusetts,  they  should  be  transported 
hither  at  the  public  expense.  I  wonder  if  a  Free-Soil  Legislature 


1850.]  SPEECH   IN   FANEUIL   HALL.  131 

would  consider  itself  powerless  to  prevent  this  State  from  being 
overwhelmed  by  such  an  irruption  ? 

I  have  been  attempting  to  illustrate  what  really  requires  no 
illustration.  The  principles  are  clear.  Every  sovereign  state 
has,  and  must  have,  the  right  to  judge  what  persons  from  abroad 
shall  be  admitted,  and  this  and  all  other  powers  the  state  is  bound 
to  use  for  the  safety  and  welfare  of  its  own  citizens.  Taking 
along  with  us  these  principles,  I  ask  you  to  go  back  with  me  to 
that  Convention  which  assembled  in  this  city  on  the  9th  day  of 
January,  1788,  to  consider  whether  this  State  should  adopt  the 
proposed  Constitution.  We  are  in  the  presence  of  no  ordinary 
assembly.  In  the  chair  is  John  Hancock,  the  man  who,  in  1775, 
threw  his  name  and  his  fortune  into  the  scale  of  the  Colony,  at  the 
beginning  of  its  contest  with  the  Crown,  and  who,  whatever  else 
may  be  said  of  him,  was  always  true  to  the  Revolution.  There  is 
Theophilus  Parsons,  who  has  sounded  all  the  depths  of  public  and 
private  law.  There  is  Samuel  Adams,  not  improperly  called  the 
Cato  of  America,  his  whole  soul  filled  with  the  idea  of  human 
liberty  and  popular  rights,  upon  whose  ears  the  sounds  of  the  guns 
at  Lexington  fell  with  sweeter  tones  than  the  songs  of  birds  in 
that  morning  of  spring.  There  too  were  Gerry  and  Varnum,  and 
Gore,  Ames,  and  Bowdoin,  and  Sedgwick  of  Stockbridge,  the  sol 
dier,  the  jurist,  the  ardent  patriot,  the  true  philanthropist,  who  by 
his  professional  exertions  had  just  before  struck  the  last  blow  at 
negro  slavery  in  Massachusetts,  and  a  crowd  of  able,  just,  and  wise 
associates,  fresh  from  the  deep  and  intensely  interesting  discussions 
concerning  political  and  civil  liberty,  which  originated  and  accom 
panied  and  followed  the  war  of  the  Revolution.  The  question  is, 
whether  these  men  were  so  ignorant,  or  so  blind  to  their  duty  as 
legislators,  as  citizens,  and  as  men,  as  to  make,  in  behalf  of  this 
Commonwealth,  a  compact  so  grossly  immoral,  that  their  children 
may  not  fairly  execute  it,  but  must  now  overthrow  and  destroy  the 
work  of  their  hands.  Let  us  see. 

In  the  first  place,  it  was  known  to  them,  and  is  certain,  that  the 
Union  could  not  be  formed,  and  the  Constitution  adopted,  without 
this  article. 

In  the  next  place,  they  believed,  and  we  know,  that  it  was  im 
possible  to  over-estimate  the  importance  of  this  Union  and  this 
Constitution  to  the  people  whom  they  represented.  The  Con 
federation  had  proved  powerless  for  good.  The  public  debt  of 


132  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1850. 

the  country,  due  chiefly  to  the  officers  and  soldiers  of  the  Revo 
lution,  of  whom  this  State  furnished  so  large  a  part,  could  not  be 
paid. 

The  commerce  of  the  country  was  in  the  utmost  disorder.  Each 
State  had  its  own  navigation  laws  and  imposts,  and  was  already 
using  these  powerful  and  exciting  instruments  in  a  manner  hostile 
to  every  other  State.  An  insurrection  against  the  laws  in  this 
State,  known  as  Shays's  rebellion,  which  seriously  threatened,  not, 
only  the  existence  of  our  government,  but  the  general  peace  of  the 
country,  and  was  connected  with  risings  both  in  New  Hampshire 
and  Connecticut,  had  just  been  quelled  with  great  difficulty.  Great 
Britain,  from  whose  grasp  we  had  escaped  in  open  contest,  was  now 
waiting  to  see  us  prostrated  by  internal  struggles,  and  from  the 
great  heart  of  Washington  was  extorted  the  exclamation,  "  What, 
gracious  God,  is  man,  that  there  should  be  such  inconsistency  and 
perfidiousness  in  his  conduct !  It  is  but  the  other  clay  we  were 
shedding  our  blood  to  obtain  the  constitutions  under  which  we  live, 
—  constitutions  of  our  own  choice  and  making,  —  and  now  we  are 
unsheathing  the  sword  to  overturn  them.  The  thing  is  so  un 
accountable  that  I  hardly  know  how  to  realize  it,  or  to  persuade 
myself  that  I  am  not  under  the  illusion  of  a  dream." 

This  was  the  state  of  public  affairs  under  which,  in  January, 
1788,  this  Convention  assembled.  They  foresaw  that  this  great" 
instrument  presented  for  their  adoption  would  accomplish  what  it 
has  accomplished,  —  that  it  would  form  a  more  perfect  union,  — 
that  it  would  establish  justice,  —  that  it  would  insure  domestic 
tranquillity,  —  that  it  would  provide  for  the  common  defence, — 
that  it  would  promote  the  general  welfare,  and  secure  the  bless 
ings  of  liberty  to  the  people  of  this  Commonwealth,  and  their 
posterity. 

On  the  one  hand  were  the  evils,  on  the  other  the  benefits,  —  and 
they  were  called  on  to  choose  between  them  for  the  people  of  this 
Commonwealth  during  countless  generations. 

Now,  let  us  suppose  that  some  one  had  been  mad  enough  to 
rise  in  that  Convention,  and  say,  "  I  see  these  evils,  —  they  are 
great  now,  and  threaten  to  become  intolerable.  I  see  these  bene 
fits  ;  I  believe  this  Constitution  will  perform  for  Massachusetts  all 
that  it  promises.  But  I  deny  that  Massachusetts,  as  a  sovereign 
and  civilized  state,  has  the  rightful  power  to  make  this  compact. 
For  here  is  a  stipulation  in  it  that  persons  held  to  service  in  states 


1850.]  SPEECH   IN   FANEUIL   HALL.  133 

now  foreign  to  us,  escaping  hither,  shall  be  given  up  to  be  carried 
back  again." 

I  cannot  pretend,  fellow-citizens,  to  give  any  idea  of  the  treat 
ment  which  such  an  objection  would  have  received  from  the  great 
and  powerful  minds  of  that  Convention.  I  believe  they  would  not 
have  left  a  vestige  of  it  on  earth,  —  no,  nor  the  material  to  make  a 
ghost  of,  to  rise  from  regions  below,  and  frighten  some  of  their 
descendants.  But  it  needs  no  uncommon  ability  and  discernment 
to  see  sufficient  answers  to  this  objection. 

In  the  first  place,  are  not  these  persons  foreigners  as  to  us,  — 
and  what  right  have  they  to  come  here  at  all,  against  the  will  of  the 
legislative  power  of  the  State  ?  And  if  their  coming  here,  or  re 
maining  here,  is  not  consistent  with  the  safety  of  the  State  and 
the  welfare  of  the  citizens,  in  the  name  of  all  that  is  rational,  may 
we  riot  prohibit  their  coming,  or  send  them  back  if  they  come  ? 

If  we  have  a  right  to  say  to  those  who  have  been  ground  down 
by  the  oppression  of  England,  you  must  not  land  on  our  shores,  be 
cause  your  presence  here  is  injurious  to  us,  have  we  not  a  right  to 
avoid  enormous  evils,  and  secure  incalculable  benefits,  not  otherwise 
attainable,  by  a  compact,  one  article  of  which  agrees  that  our  State 
shall  not  be  an  asylum  for  fugitives  from  service? 

To  deny  this,  is  to  deny  the  right  of  self-preservation  to  a  state. 
It  strikes  at  the  heart  of  every  civilized  community.  It  makes  its 
preservation  impossible,  and  throws  us  back  at  once  into  a  condi 
tion  below  the  most  degraded  savages  who  have  a  semblance  of 
government. 

No  sane  man  can  reflect,  and  then  make  such  a  denial ;  so  that 
there  can  be  but  one  possible  question,  and  that  is  simply  a  question 
whether  the  emergency  was  such  as  called  for  the  exercise  of  the 
power.  Upon  this  question  also,  unless  we  overturn  principles 
necessary  to  the  existence  of  civil  society,  it  is  impossible  to  doubt 
that  we  are  precluded  and  justly  bound  by  the  action  of  the  State 
in  1788.  Has  not  a  state  the  right  to  make  compacts  and  treaties, 
—  and  when  they  are  made,  are  they  not  to  be  kept  ? 

May  the  State  make  a  promise  to-day,  and  to-morrow  say,  "  Ou 
the  whole,  our  interest  did  not  require  that  promise,  and  it  is  not  to 
be  kept  "  ?  If  it  be  the  test  of  a  just  man  that,  though  he  promise 
to  his  harm,  he  keeps  his  promise  good,  is  it  not  also  applicable  to 
a  state  ?  But,  in  truth,  there  is  no  occasion  to  rely  on  any  such 
obligation,  for  if  it  be  once  admitted  that  this  Commonwealth  in 


134  MEMOIR   OF   BENJAMIN   BOBBINS   CUKTIS.  [1850. 

1788  had  the  rightful  power  to  assent  to  the  Constitution,  there 
cannot  be  two  opinions  among  those  who  know  the  facts,  that  the 
requisite  emergency  existed. 

I  am  not  about  to  repeat  what  I  have  already  said  respecting 
that  emergency.  You  know  what  it  was.  You  know  that  the 
great  duty  of  justice  could  not  otherwise  be  performed  ;  that  our 
peace  at  home,  and  our  safety  from  foreign  aggression,  could  not 
otherwise  be  insured  ;  and  that  only  by  this  means  could  we  obtain 
the  blessings  of  liberty  to  the  people  of  Massachusetts,  and  their 
posterity.  I  may  add  what  now  is  a  great  and  glorious  motive, 
which  our  fathers  anticipated,  and  our  eyes  have  seen,  in  no  other 
way  could  we  become  an  example  of,  and  a  security  for,  the  ca 
pacity  of  man,  safely  and  peacefully  and  wisely,  to  govern  himself, 
under  free  and  popular  constitutions.  But  I  wish  to  ask  your  at 
tention  particularly  to  one  thing,  which  is  more  intimately  connected 
with  this  subject. 

I  undertake  to  say,  that  men  of  forecast  must  then  have  fore 
seen,  and  subsequent  events  have  demonstrated,  and  it  is  now  known, 
that  without  an  obligation  to  restore  fugitives  from  service,  Consti 
tution  or  no  Constitution,  Union  or  no  Union,  we  could  not  expect 
to  live  in  peace  with  the  slave-holding  States. 

You  may  break  up  the  Constitution  and  the  Union  to-morrow  ; 
you  may  do  it  by  a  civil  war,  or  by  what  I  could  never  understand 
the  method  or  the  principles  of,  — -  what  is  called  a  peaceable  seces 
sion  ;  you  may  do  it  in  any  conceivable  or  inconceivable  way  ;  you 
may  draw  the  geographical  line  between  slave-holding  and  non- 
slave-holding  anywhere;  but  when  we  shall  have  settled  down,  they 
will  have  their  institutions,  and  we  shall  have  ours.  One  is  as 
much  a  fact  as  the  other.  One  engages  the  interests  and  feelings 
and  passions  of  men  as  much  as  the  other.  And  how  long  can  we 
live  in  peace,  side  by  side,  without  some  provision  by  compact,  to 
meet  this  case  ?  Not  one  year.  Any  reflecting  man  can  satisfy 
himself  of  this,  by  turning  his  mind  upon  the  facts  ;  and  history 
proves  it.  As  early  as  1643,  when  the  country  was  a  wilderness, 
and  the  movement  of  persons  from  one  part  to  another  unfrequent 
and  exceedingly  difficult,  the  Colonies  of  Massachusetts  and  Plym 
outh,  Connecticut  and  New  Haven,  found  it  necessary,  even  in  that 
primitive  and  imperfect  union,  which  they  founded  to  stay  them 
selves  against  destruction,  to  insert  an  article  substantially  like  this 
one  :  "  That  if  any  servant  run  away  from  his  master,  into  any  of 


1850.]  SPEECH   IN   FANEUIL   HALL.  135 

the  confederate  jurisdictions,  that  in  such  case,  (upon  certificate 
from  one  magistrate  in  the  jurisdiction  out  of  which  the  servant 
fled,  or  upon  other  due  proof,)  the  said  servant  shall  be  either  de 
livered  to  his  master,  or  any  other  that  pursues,  and  brings  such 
certificate  and  proof." 

But  we  need  not  pause  upon  this  very  early  experience  of  our 
New  England  ancestors.  The  government  of  the  United  States 
had  not  been  in  operation  two  years,  when  the  necessity  of  some 
such  provision,  in  some  form,  to  preserve  the  peace  of  bordering 
independent  states,  was  clearly  proved.  You  know  that  in  1789 
Florida  belonged  to  Spain,  and  stretched  along  the  southern  border 
of  Georgia.  Well,  General  Washington  had  not  been  two  years 
in  office  when  the  people  of  Southern  Georgia  became  so  uneasy 
on  account  of  the  escape  of  their  slaves  across  the  border  into 
Florida,  as  to  make  very  urgent  representations  to  the  national 
government  demanding  redress.  And  thereupon  orders  were 
obtained  from  the  Spanish  court  to  arrest  the  further  reception 
of  the  fugitives,  and  to  make  restitution  ;  and  President  Washing 
ton  sent  a  special  messenger  into  Florida  to  see  to  the  execution  of 
these  orders. 

It  is  unnecessary  to  enlarge  upon  this.  If  any  one  in  this  age 
expects  to  live  in  peace,  side  by  side  with  the  slaveholding  States, 
without  some  effectual  stipulation  as  to  the  restoration  of  fugitives, 
he  must  either  be  so  wise  as  to  foresee  events  in  no  way  connected 
with  human  experience,  or  so  foolish  as  to  reject  experience  and 
probabilities  as  guides  of  action. 

I  know  it  may  be  said,  "  Let  the  contest  come.  We  are  ready 
for  it.  Let  the  blood  of  the  slaughtered  be  upon  the  heads  of 
those  who  are  in  the  wrong  "  When  I  look  abroad  over  a  hundred 
thousand  happy  homes  in  Massachusetts,  and  see  a  people  such 
as  the  blessed  sun  has  rarely  shone  upon,  —  so  intelligent,  educated, 
moral,  religious,  progressive,  and  free  to  do  every  thing  but  wrong  ; 
when  I  call  to  mind  its  admirable  constitution  of  government,  and 
that  it  comes  as  near  to  perfection  as  the  lot  of  humanity  permits  ; 
when  I  remember  that  these  things  are  the  free  gifts  of  that  awful 
Being,  who  holds  peoples  and  nations  in  the  hollow  of  his  hand,  —  I 
fear  to  say  that  I  should  not  be  in  the  wrong  to  put  all  this  at  risk, 
because  our  passionate  will  impels  us  to  break  a  promise  which  our 
wise  and  good  fathers  made,  not  to  allow  a  class  of  foreigners  to 
come  here,  or  to  send  them  back  if  they  come. 


136  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1851. 

With  the  rights  of  those  persons  I  firmly  believe  Massachusetts 
has  nothing  to  do.  It  is  enough  for  us  that  they  have  no  right 
to  be  here.  Our  peace  and  safety  they  have  no  right  to  invade  ; 
whether  they  come  as  fugitives,  and,  being  here,  act  as  rebels 
against  our  law,  or  whether  they  come  as  armed  invaders.  What 
ever  natural  rights  they  have,  and  I  admit  those  natural  rights  to 
their  fullest  extent,  this  is  not  the  soil  on  which  to  vindicate  them. 
This  is  our  soil,  sacred  to  our  peace,  on  which  we  intend  to  per 
form  our  promises,  and  work  out,  for  the  benefit  of  ourselves  and 
our  posterity  and  the  world,  the  destiny  which  our  Creator  has 
assigned  to  us.  So  far  as  He  has  supplied  us  with  the  means  to 
succor  the  distressed,  we,  as  Christian  men,  will  do  so,  and  bid 
them  welcome,  and  thank  God  that  we  have  the  means  to  do  it. 
But  we  will  not  act  beyond  those  means ;  we  will  not  violate  a 
solemn  compact  to  do  it ;  we  will  not  do  it  by  holding  up  our 
hands  and  swearing  to  render  a  verdict  according  to  the  law  and 

£5  O 

the  evidence,  and  then  knowingly  violate  that  oath ;  we  will  not 
plunge  into  civil  discord  to  do  it;  we  will  not  shed  blood  to  do  it; 
we  will  not  so  throw  away  the  rich  gifts  which  He  has  conferred 
upon  us,  not  for  our  benefit  alone,  but  in  trust  for  the  countless 
generations  of  His  children. 

In  my  judgment,  these  are  not  means  which  He  has  confided 
to  us  to  enable  us  to  succor  the  needy  and  the  oppressed  of  other 
states ;  and,  so  far  as  depends  upon  me,  these  means  shall  never 
be  used. 

I  have  now  to  describe  an  occasion  on  which  Mr.  Curtis 
felt  called  upon  to  appeal  to  the  people  of  Massachusetts,  in 
regard  to  an  act  which  he  deemed  one  of  great  political 
profligacy  perpetrated  by  two  different  bodies  of  their 
representatives,  in  the  pursuit  of  party  objects  and  power, 
by  a  flagrant  violation  of  a  public  trust.  It  may  be  that 
such  acts  have  become  common  ;  that  the  public  conscience 
is  somewhat  blunted  now  by  similar  doings  ;  and  that  it  is  too 
late  for  a  true  appreciation  of  their  enormity.  But  even  if 
this  be  true,  it  must  be  remembered  that  this  is  a  sketch  of 
the  life  and  character  of  an  individual,  and  that  its  princi 
pal  concern,  in  regard  to  any  public  affair,  is  with  the  man 
ner  in  which  he  felt  about  it  and  acted  upon  it. 


1851.]  THE   COALITION.  137 

In  January,  1851,  Mr.  Curtis  became  a  member  of  the 
lower  house  of  the  Massachusetts  Legislature.  He  had  con 
sented  to  be  chosen  to  this  position  by  his  fellow-citizens  of 
Boston,  in  order  to  effect  some  reforms  in  the  practice  of  the 
courts.  It  happened  that  the  State  election  of  the  preced 
ing  autumn  had  resulted  in  a  condition  of  parties  in  the 
Legislature  which  was  quite  unusual,  if  not  unprecedented. 
It  was  a  period  in  the  political  history  of  that  State,  when 
the  third  political  party,  already  referred  to,  unable  to  con 
trol  the  political  power  of  the  State  by  their  own  numerical 
strength,  sought  to  obtain  as  much  of  that  power  as  they 
could  by  a  bargain  with  one  of  the  other  parties  for  an  equal 
distribution  of  the  public  offices  between  them.  There  had 
been  no  election  of  a  Governor  and  Lieutenant-Governor  by 
the  popular  votes,  and  those  offices,  and  all  the  minor  ones 
involved  in  the  organization  of  the  State  government,  were 
to  be  filled  by  the  Legislature.  Two  United  States  Senators 
were  also  to  be  chosen,  —  one  for  a  term  of  six  years,  to 
succeed  Mr.  Webster,  who  had  become  Secretary  of  State 
when  Mr.  Fillmore  became  President,  after  the  death  of 
President  Taylor,  — and  one  for  a  shorter  period. 

The  members  returned  to  the  two  houses  of  the  Lemsla- 

O 

ture  represented  the  Whig,  the  Democratic,  and  the  Free- 
Soil  parties,  —  neither  party  having  by  itself  a  controlling 
majority.  In  professed  public  principles  on  all  the  ques 
tions  relating  to  national  affairs,  and  especially  to  the 
Compromise  Measures  of  1850,  the  representatives  of  the 
Democratic  and  Free-Soil  parties  Avere  as  wide  asunder 
as  men  could  be.  They  assembled,  separately,  on  the  eve 
of  the  meeting  of  the  Legislature,  and,  after  various  mes 
sages  and  negotiations  through  their  respective  committees, 
a  bargain  was  at  length  concluded,  by  parcelling  out  office 
for  office  between  the  two  parties,  according  to  an  arranged 
programme,  which  was  afterwards  followed  out  in  exact 
performance  of  the  contract,  step  by  step,  in  regard  to  all 
the  appointments  that  were  to  be  made,  —  Democrats  vot- 


188  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1851. 

ing  for  men  whose  political  principles  they  disapproved,  and 
Free-Soile  rs  doing  the  same  thing.  The  ultimate  object  of 
this  trade  in  the  positions  of  public  trust  that  were  to  be 
filled  —  so  far  as  the  Free-Soil  party  Avas  concerned  —  was 
to  reach  and  secure  the  election  of  Mr.  Charles  Surnner  to 
the  Senate  of  the  United  States  for  the  long  term.  This 
was  finally  accomplished,  because  the  Democrats,  after 
they  had  gone,  step  by  step,  through  all  the  preceding  part 
of  the  bargain,  found  that  they  had  received  both  promise 
and  delivery  of  the  consideration  for  which  they  had  pledged 
themselves  in  advance  to  elect  whomsoever  the  Free-Soil 
party  might  name  as  Senator  in  Congress  for  the  period  of 
six  years.  It  seemed  to  Mr.  Curtis,  and  other  members  of 
the  Legislature  who  thought  of  this  transaction  as  he  did, 
that  the  facts  should  be  laid  before  the  people  of  the  State, 
accompanied  by  appropriate  comments.  He  was  requested 
to  prepare  for  this  purpose  an  Address  to  the  People  of 
Massachusetts,  to  be  signed  by  the  Whig  members  of  the 
Legislature.  This  paper,  signed  by  one  hundred  and  sixty- 
seven  members  of  the  two  houses,  and  published  and  circu 
lated  throughout  the  State,  read  as  follows :  — 

To  THE  PEOPLE  OF  MASSACHUSETTS. 

THE  undersigned,  members  of  the  Senate  and  House  of  Repre 
sentatives  of  the  Commonwealth  of  Massachusetts,  desire  to  address 
you  on  a  subject  of  great  public  concern.  They  wish  to  ask  your 
attention  to  certain  transactions,  which  have  passed  under  their 
notice,  and  which  demand  your  serious  consideration. 

It  is  known  to  you,  that,  at  the  election  of  State  officers  in 
November  last,  the  Free-Soil  and  Democratic  parties  were  separate 
political  organizations,  having  different  candidates  for  Governor, 
and  publicly  professing  very  different  political  principles.  You 
sent  to  the  Legislature  members  of  each  of  these  political  parties, 
who  had  theretofore  held  the  distinctive  political  principles  of  each, 
and  who  were  elected  because  they  were  known  to  hold  those 
principles.  On  the  first  day  of  January,  the  Legislature  assembled, 
and  its  members,  including  the  persons  above  referred  to,  were 


1851.]  ADDRESS    ON   THE   COALITION.  139 

sworn.  On  the  evening  of  that  day,  the  Democratic  members  of 
the  Legislature  came  together  in  caucus,  at  a  room  in  the  State- 
House  in  Boston,  and  at  the  same  time,  and  in  another  room  in  the 
same  building,  the  Free-Soil  members  of  the  Legislature  also  met  in 
a  distinct  caucus.  Each  of  these  bodies  on  that  evening  appointed 
a  committee,  to  meet  and  confer  in  regard  to  all  the  offices  to  be 
filled  by  the  Legislature. 

These  committees  met  for  this  conference  on  the  evening  of 
the  2d  of  January,  and  the  Free-Soil  committee  "  proposed  to 
concede  the  Governor  to  the  Democrats,  on  condition  that  the 
United  States  Senator  for  six  years  should  be  conceded  to  the 
Free-Soilers."  What  was  intended  by  ik  conceding"  the  Governor 
to  the  Democrats,  was  explained  by  the  Free-Soil  committee  to 
be  this :  "  The  Free-Soilers  were  ready  to  elect  Mr.  Boutwell 
without  any  pledges  whatever ;  they  were  willing  to  place  the 
government  of  the  State  in  the  hands  of  the  Democracy,  asking 
no  pledges  for  principles,  measures,  or  offices."  But,  at  the  same 
time,  they  had  so  little  confidence  in  the  men  to  whom  the  administra 
tion  of  all  State  affairs  would  thus  be  confided,  that  they  thought  it 
necessary  to  make  an  explicit  declaration,  that  "  they  would  give  no 
pledges  to  support  his  (Governor  Boutwell's)  administration,  and 
would  take  no  responsibility  for  it ; "  so  that  they  were  willing,  and 
then  offered,  by  their  votes  as  members  of  the  Legislature,  to  con 
fide  the  whole  executive  power  of  the  State,  with  no  restriction  as 
to  principles,  or  measures,  to  a  man  whom  they  so  distrusted  that 
they  expressly  stipulated  not  to  be  in  any  way  responsible  for  any 
thing  he  might  do. 

In  consideration  of  this,  they  required  that  the  United  States 
Senator  should  be  conceded  to  them  ;  and  they  went  on  to  explain 
the  meaning  of  this  It  was,  that  "  the  Senator,  whoever  he  might 
be,  must  go  to  Washington  uncommitted  to  any  party,  or  any  set 
of  men ;  he  mast  stand  upon  the  principles  publicly  recognized  bij  the 
party  with  which  he  acted"  That  is,  the  Free-Soilers  were  to  select 
a  person  not  yet  fixed  upon,  the  Democrats  were  to  elect  him,  by 
their  votes  as  members  of  the  Legislature,  and  he  was  to  act  in  the 
Senate  of  the  United  States  upon  the  principles  of  the  Free-Soil 
party,  the  Democratic  party  having  no  right  whatever  to  expect 
him  to  act  on  their  political  principles. 

Such  was  the  bargain  proposed  by  one  of  these  committees  to 
the  other  ;  it  was  agreed  to  on  the  spot  by  both  ;  and,  as  will  here- 


140  MEMOIR   OF  BENJAMIN   BOBBINS   CUKTIS.  [1851 

after  be  seen,  members  of  those  committees,  under  this  bargain, 
voted  for  Mr.  Sumner,  and  their  votes  were  necessary  to  his  elec 
tion.  Each  committee  afterwards  reported  to  its  respective  con 
stituents,  in  caucus  assembled,  the  above  arrangement  to  concede 
the  Governor  to  the  Democrats  and  the  Senator  to  the  Free-Soilers, 
and  each  caucus  finally  assented  thereto.  Subsequently,  Mr.  Charles 
Sumner  was  selected  by  the  Free-Soil  caucus  as  their  candidate 
for  the  office  of  Senator;  his  name  was  sent  to  the  Democratic 
caucus,  and  a  majority  of  this  body  voted  to  cast  their  ballots  in 
his  favor.  Such  is  a  brief  statement  of  this  transaction,  so  far  as 
it  relates  to  the  office  of  Senator  of  the  United  States,  as  deduced 
from  printed  statements  made  by  parties  who  acted  on  each  com 
mittee,  and  had  prominent  parts  in  these  affairs.1  We  have  for 
borne  to  say  any  thing  of  the  negotiations  about  minor  offices, 
desiring  to  present  distinctly  the  main  subject. 

The  bargain  being  struck,  it  remained  to  execute  it.  Mr.  Bout- 
well  was  elected  Governor,  the  Free-Soil  members  of  the  Legisla 
ture  voting  for  him,  in  pursuance  of  their  contract.  Mr.  Sumner 
was  chosen  by  the  Senate  to  fill  the  office  of  Senator  of  the  United 
States ;  every  Democratic  Senator,  twelve  in  number,  —  except 
Mr.  Beach  of  Hampden,  and  one  other  who  was  absent,  —  voting 
for  him,  in  execution  of  their  compact,  and  their  votes  being  neces 
sary  for  his  election. 

The  balloting  in  the  House  of  Representatives  was  begun.  It 
was  found  that  certain  members  of  the  Democratic  party,  about 
ninety  in  number,  voted  for  him,  while  others  did  not  do  so,  and 
no  choice  was  made.  And  thereupon,  through  the  newspapers,  in 
private  conferences,  and  by  public  declarations,  the  members  of 
the  Free-Soil  party  insisted  that  it  was  a  matter  of  compact  and 
agreement  that  the  members  of  the  Democratic  party  would  vote 
for  a  person  to  be  selected  by  the  Free-Soilers,  and  that  Mr.  Sum 
ner  had  been  selected  by  them ;  that  the  members  of  that  party 
who  did  vote  for  him  acted  in  pursuance  of  a  binding  contract,  the 
consideration  of  which  had  already  been  paid  by  placing  the  State 
government  in  Democratic  hands  ;  that  they  who  refused  so  to 
vote,  were  guilty  of  bad  faith  ;  that  there  was  no  liberty  of  choice, 
but  an  absolute  and  perfect  obligation,  springing  from  a  contract  to 
vote  for  a  person  to  be  selected  by  the  Free-Soilers.  No  matter 
who  might  be  presented  as  a  candidate  for  their  suffrages,  —  no 

1  See  infra,  note  to  page  148. 


1851.]  ADDRESS    ON   THE   COALITION.  141 

matter  if  it  should  appear,  in  the  course  of  the  contest,  that  the 
Democratic  votes  would  elect  a  man  whom  every  Democrat  in 
Massachusetts  would  desire  to  place  ii  the  Senate,  —  they  were 
bound,  hand  and  foot,  by  this  bargain :  '*  that  the  Free-Soil  party 
had  a  right  to  the  specific  performance  of  the  contract,  deliberately 
entered  into  by  the  Democrats,  the  consideration  for  which  they  had 
already  received" 

On  the  other  hand,  the  Democratic  members  who  refused  to  vote 
for  Mr.  Sumner  denied  that  they,  as  individuals,  had  engaged  to 
vote  for  him.  With  this  charge  of  what  is  called  "  bad  faith"  we 
do  not  meddle.  It  may  be  true  or  false.  But  it  is  an  issue  quite 
collateral  to  the  main  subject.  The  Free-Soilers  assert  that  they 
bought  *and  paid  for  all  the  Democratic  votes.  These  members  in 
effect  say,  the  Free-Soilers  bought  and  paid  for  only  three  quarters 
of  them,  and  that  they  themselves  were  not  included  in  the  con 
veyance.  This  is  very  important  to  the  honor  and  principle  of 
these  individuals ;  but  inasmuch  as  three  quarters,  who  are  admit 
ted  on  all  hands  to  have  been  purchased,  effected  the  election  of 
Mr.  Sumner,  there  seems  to  be  no  necessity  to  determine  with  pre 
cision  just  how  many  that  purchase  embraced. 

In  this  position  of  parties,  the  balloting  was  resumed  from  time 
to  time,  and  after  spending  ten  days  in  fruitless  attempts  to  make 
a  choice,  a  strenuous  effort  was  made  by  the  Whig  members  of  the 
House  to  postpone  the  matter  indefinitely.  Their  desire  was  to 
save  the  valuable  time  of  the  Legislature,  and  to  bring  the  whole 
subject  of  the  Senatorial  election,  and  the  conduct  of  parties  in 
reference  thereto,  before  the  people  of  the  Commonwealth,  and 
allow  their  judgment  to  operate  decisively  thereon.  It  was  known 
to  them  that  the  pendency  of  this  election,  and  the  extraordinary 
means  resorted  to  by  the  Free-Soil  party  to  carry  their  candidate, 
were  exercising  a  most  prejudicial  effect  upon  the  business  of  the 
session  ;  that  it  hung  like  a  cloud  over  the  minds  of  members  ; 
that  it  absorbed  their  thoughts  and  their  time ;  and  that  at  no 
period  in  the  history  of  the  State  had  so  little  public  business  been 
transacted  in  the  same  length  of  time.  It  was  their  desire  to 
relieve  the  State  from  the  enormous  expense,  as  well  as  the  hazard 
of  imperfect  legislation,  which  they  were  convinced  must  arise 
from  the  continuance  of  this  contest;  and  they  thought  it  due  to 
the  people  of  the  State,  that  they  should  have  the  opportunity 
to  make  known  their  will  concerning  the  transactions  above 


142  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1851. 

detailed,  before  it  should  have  become  too  late  to  make  their 
will  felt. 

In  this  effort  they  failed.  The  balloting  was  resumed  from  time 
to  time ;  three  more  days  were  consumed ;  and  on  the  twenty-sixth 
balloting,  Mr.  Charles  Sumner  was  declared  to  have  been  elected, 
he  having  received  193  out  of  385  votes,  two  blank  ballots  not  be 
ing  counted.  It  will  be  observed,  that  he  had  precisely  the  requi 
site  number  of  votes ;  and  of  these,  upwards  of  80  were  thrown  by 
Democratic  members,  procured  by  the  means  stated  above.  Thus 
was  declared  to  be  elected,  as  one  of  the  two  representatives  of  the 
State  of  Massachusetts  in  the  Senate  of  the  United  States,  for  the 
term  of  six  years,  a  man  who  received  less  than  a  majority  of  the 
votes  of  the  members  present  and  casting  ballots,  and  who  goes 
there  "  standing  on  the  publicly  professed  principles  of  a  party  " 
which  had  only  111  out  of  393  members  of  the  House  of  Repre 
sentatives,  and  whose  popular  vote  at  the  election  in  November 
last  was  only  27,000  out  of  120,000  votes. 

Time  was  when  it  would  have  been  deemed  an  insult  to  the 
instinctive  love  of  right  which  has  characterized  the  people  of  this 
State,  to  do  more  than  narrate  these  facts  to  bring  down  on  the 
contrivers  and  agents  of  this  scheme  the  indignation  of  all  decent 
men.  And  notwithstanding  the  prevalence  of  party  spirit,  which 
now  so  controls  men's  minds,  we  do  not  believe  that  honest  men 
anywhere  can  look  calmly  on  this  picture  with  any  sentiment 
except  unmingled  disgust. 

But  the  unblushing  effrontery  with  which  these  contrivances 
have  been  avowed,  and  the  arguments,'  so  called,  by  which  their 
authors  have  endeavored  to  defend  them,  do,  in  our  judgment, 
render  it  fit  that  their  true  character,  and  the  principles  involved 
therein,  should  be  plainly  stated. 

We  think  it  due  to  the  fair  fame  of  our  State,  that  such  trans 
actions  should  not  go  forth  to  the  world  in  a  silence  which  might 
be  construed  into  an  admission  that  they  are  in  conformity  with 
the  usual  principles  and  conduct  of  those  who  are  trusted  by  the 
people  of  Massachusetts  to  make  its  laws.  We  think  it  due  to  the 
public  morals  that  the  true  character  of  such  acts  should  not  be 
obscured  in  any  minds  by  the  miserable  sophistries  which  have 
been  thrown  over  them.  And  we  therefore  crave  your  candid 
attention  to  some  considerations  which  we  have  to  present  to 
you. 


1851.]  ADDRESS    ON   THE    COALITION.  143 

The  persons  who  have  acted  together  in  the  election  of  Senator, 
under  the  bargain  above  set  forth,  have  called  themselves  "  The 
Coalition."  We  must  be  permitted  to  deny  the  propriety  of  the 
name.  A  coalition  is  the  union  of  two  parties  for  the  purpose  of 
carrying  one  or  more  measures  in  which  they  conscientiously  agree. 
It  is  concert  of  action,  proceeding  from  concert  of  opinion.  It  is  a 
dangerous  experiment,  not  only  as  respects  the  public  confidence, 
but  the  principles  of  the  two  parties ;  and  no  coalition  known  to 
political  history  has  ever  succeeded  in  retaining  for  any  consider 
able  time  the  confidence  of  the  public. 

But  this  is  not  a  coalition.  A  compact  between  two  distinct 
parties,  having  different  political  principles,  for  the  purpose  of 
dividing  public  offices  between  them,  —  a  compact  to  do  this  by 
electing  a  man  for  Governor  in  whom  the  one  party  does  not  con 
fide,  in  consideration  of  electing  a  man  for  Senator  in  whom  the 
other  party  does  not  confide,  —  is  not  a  coalition,  but  a  factious 
conspiracy.  And  when  such  a  compact  is  made  between  those  who 
have  merely  a  delegated  authority,  held  in  trust,  to  be  used  under 
the  sanction  of  an  oath,  to  place  in  office  only  those  in  whom  the 
trustees  do  confide,  it  is  a  factious  conspiracy  to  violate  a  public 
trust,  and  as  such  criminal,  not  only  in  morals,  hut  in  the  law  of  the 
land.  It  is  true,  the  statute  law  of  the  State  has  not  defined  this 
offence,  as  it  has  failed  to  do  others.  It  may  be  because  it  was 
considered  by  all  former  Legislatures  that  a  statute  describing 
and  punishing  such  a  transaction  would  be  an  impeachment  of  their 
honesty,  which  they  would  not  suffer  as  respected  themselves,  arid 
were  unwilling  to  suppose  necessary  to  the  public  safety  and 
morals  as  might  respect  future  Legislatures.  But  the  common 
law  which  pervades  society,  and  enters  into  the  relations  of  life, 
both  public  and  private,  with  its  benign  but  bracing  influence, 
deems  such  an  abuse  of  a  public  trust  a  misdemeanor,  punishable 
by  indictment.  And  there  is  high  authority  that  a  bargain  like 
this,  even  when  made  by  single  persons,  and  in  reference  to  subjects 
of  far  less  public  concern  than  this,  is  an  indictable  offence.  In 
the  year  1825  a  case  came  before  the  highest  criminal  court  of  one 
of  our  sister  States,  wherein  it  appeared  that  A.  and  B.  were  justices 
of  the  peace,  and  as  such  had  the  right  to  vote  in  the  county  court 
for  certain  county  officers  ;  that  they  agreed  together  that  A.  would 
vote  for  C.  for  commissioner,  in  consideration  that  B.  would  vote 
for  D.  for  clerk ;  and  that  they  voted  in  pursuance  of  that  agree- 


144  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1851. 

ment.  The  statute  of  the  State,  like  ours,  did  not  reach  the  case. 
But  their  common  law,  the  same  as  ours,  declared  :  "  The  defend 
ants  were  justices  of  the  peace,  and  as  such  held  an  office  of  high 
trust  and  confidence.  In  that  character  they  were  called  upon  to 
vote  for  others,  for  offices  also  implying  high  trust  and  confidence. 
Their  duty  required  them  to  vote  in  reference  only  to  the  merit 
and  qualifications  of  the  officers  ;  and  yet,  upon  the  pleadings  in 
this  case,  it  appears  that  they  wickedly  and  corruptly  violated  their 
duty,  and  betrayed  the  confidence  reposed  in  them,  by  voting  under 
the  influence  of  a  corrupt  bargain,  or  reciprocal  promise,  by  which 
they  had  come  under  a  reciprocal  obligation  to  vote  respectively  for 
a  particular  person,  no  matter  how  inferior  their  qualifications  to 
their  competitors.  It  would  seem,  then,  upon  these  general  princi 
ples,  that  the  offence  in  the  information  is  indictable  at  the  common 
law."1 

This  is  the  manly  and  clear  response  of  the  common  law,  —  the 
inheritance  of  our  fathers  and  ourselves,  —  not  only  in  that  State, 
but  wherever  it  prevails.  And  now,  what  are  the  differences  be 
tween  that  crime  and  the  case  we  lay  before  you  ?  The  parties  to 
that  bargain  were  electors  in  the  court  of  a  county ;  the  parties  to 
this  bargain  were  electors  in  the  Legislature  of  Massachusetts. 
The  parties  to  that  bargain  were  two  individuals,  and  their  com 
pact  controlled  two  votes ;  the  parties  to  this  bargain  were  numer 
ous,  and  their  compact  controlled  many  votes  ;  arid  every  reflecting 
man  must  see,  that  a  conspiracy  becomes  more  criminal,  the  more 
persons  it  embraces,  and  the  more  power  it  wields.  The  parties 
to  that  bargain  made  it  "  without  reference  to  the  qualifications  of 
the  candidates ; "  the  parties  to  this  bargain  entered  into  it  with 
an  open  declaration  that  one  of  the  candidates  was  distrusted  by 
one  party,  and  the  person  who  was  to  be  voted  for  by  the  other 
party  was  not  even  selected,  nothing  being  known,  except  that  he 
was  not  to  act  on  the  principles  which  one  of  the  parties  who  were 
to  vote  for  him  had  long  professed  to  hold  dear.  The  subjects  of 
the  bargain  in  that  case  were  a  county  clerk  and  a  county  com 
missioner;  the  subjects  of  this  bargain  were  the  Governor  of 
Massachusetts  and  one  of  its  Senators  in  the  Congress  of  the 
United  States.  And  finally,  in  that  case,  it  does  not  appear  that 
the  officers  voted  for  by  the  criminals  were  actually  elected ;  while 
in  this  case  it  is  known  that  this  corrupt  agreement  made  one  man 

1   Commonwealth  \,  Callayhan  et  at.,  2  Virg.  Cas.  400. 


1851.]  \DDEESS   ON  THE  COALITION.  145 

Governor,  and  caused  another  to  be  declared  elected  a  Senator  in 
Congress. 

Such  is  the  case  we  lay  before  you  for  judgment.  But  before 
passing  thereon,  we  request  you  to  notice  the  grounds  which  have 
been  relied  on  in  its  attempted  justification  or  excuse. 

It  is  alleged  that,  inasmuch  as  neither  of  the  three  political  par 
ties  in  the  Legislature  had  a  majority,  it  was  necessary  to  enter 
into  this  compact.  To  judge  of  the  soundness  of  this  plea,  it  is 
only  requisite  to  bear  in  mind,  that  Congress  does  not  assemble 
until  the  first  day  of  December ;  that  the  next  session  of  the 
Legislature  will  begin  on  the  seventh  day  of  January ;  and  there 
fore,  if  no  election  of  Senator  should  have  been  made  by  this 
Legislature,  the  place  need  be  vacant  only  about  thirty  days  at 
the  beginning  of  the  long  session  of  Congress,  when  no  business 
of  importance  is  to  be  expected,  especially  in  the  Senate ;  and  out 
of  these  thirty  days  must  come  the  Christmas  holidays,  during 
which  no  business  is  done.  How  far  these  parties  were  influenced 
by  any  idea  of  necessity,  may  be  estimated  from  the  fact,  that  by 
their  united  votes  they  chose  Mr.  Rantoul  Senator,  at  a  time 
when  he  was  known  to  be  so  distant  from  home  that  he  did  not 
take  his  seat  in  the  Senate  until  fourteen  days  after  his  election, 
and  that  too  at  the  close  of  the  session,  when  the  Senate  was 
crowded  with  business  of  the  greatest  importance  to  the  country. 
So  far,  therefore,  as  concerns  the  Senatorial  election,  the  plea  of 
necessity  is  false  in  fact.  But  if  it  were  not  so,  —  if  the  like 
necessity  existed  for  filling  this  office  as  for  organizing  the  State 
government,  —  are  the  political  institutions  of  Massachusetts  such 
as  to  impose  on  those  intrusted  by  the  people  with  the  high  func 
tion  of  filling  these  great  offices  the  necessity  of  making  a  corrupt 
bargain,  by  Vhich  one  party  wilfully  surrenders  its  own  convic 
tions,  in  consideration  that  another  party  will  commit  a  like  breach 
of  trust?  We  utterly  deny  this.  We  know  that  emergencies  may 
arise,  in  which  members  of  the  Legislature,  finding  it  impossible 
to  place  in  office  those  men  whom  they  believe  lest  qualified,  may 
be  under  a  moral  necessity  to  vote  for  others  who  are  next  best,  in 
order  to  have  a  government.  But  let  it  not  be  lost  sight  of,  for  a 
moment,  that  these  delicate  and  difficult  emergencies  are  precisely  the 
occasions  on  which  every  man  is  specially  bound  to  keep  his  mind 
free  from  all  improper  biases.  He  has  a  difficult  duty  to  perform, 
calling  for  the  exercise  of  all  the  impartiality  and  wisdom  which 
VOL.  i.  10 


146  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1851. 

he  possesses.  And  when  it  is  whispered  in  his  ear,  or  impudently 
proclaimed  at  a  caucus,  "  Agree  to  vote  for  a  man  not  yet  known, 
for  Senator  of  the  United  States,  and  we  will  put  your  candidate 
into  the  chair  of  state,  though  we  care  nothing  about  him,  and  do 
not  confide  in  him,"  —  who  does  not  know  that  the  tempter  speaks 
to  him  ?  And  how  strange  is  the  reason  for  listening,  —  that  an 
emergency  has  arisen,  calling  for  more  than  ordinary  circumspection, 
and  a  perfectly  cool,  clear,  and  free  judgment! 

It  may  be  said  by  Democratic  members,  When  we  learned  the 
name,  and  found  it  was  Mr.  Sumner,  we  were  well  enough  satisfied 
with  his  qualifications.  We  have  satisfactory  evidence  that  this  is 
not  true ;  that  not  a  few  Democratic  members  voted  for  Mr.  Sum 
ner  contrary  to  their  own  wishes  and  convictions,  and  solely 
because  they  considered  themselves  bound  by  the  bargain  to  do  so. 
But  if  there  are  any  who  can  truly  say,  we  were  satisfied  when  we 
learned  his  name,  the  answer  is,  you  had  unfitted  yourselves  to 
judge.  You  had  already  placed  yourselves  under  the  influence  of 
a  tempting  offer,  which  you  had  accepted.  You  had  made  a  bar 
gain,  and  received  the  consideration,  and  could  no  longer  bring  to 
the  question  that  upright  and  unbiassed  judgment  which  alone 
would  enable  you  to  do  your  duty  to  the  State.  And  when  the 
Free-Soil  party  were  brought  to  the  consideration  of  the  question, 
which  of  two  persons,  Mr.  Briggs  or  Mr.  Boutwell,  was  best  quali 
fied  for  the  place  of  Governor,  does  any  man  believe  they  were 
capable  of  deciding  impartially  and  justly,  when  they  found  that,  if 
they  cast  their  votes  for  the  latter,  they  could  secure  the  prize  of 
Senatorial  power,  at  which  they  were  so  eagerly  grasping?  No 
one  can  believe  it.  And  yet  it  is  precisely  this  pressure  on  the 
judgment  which  renders  all  bribery  illegal  and  immoral.  The 
essence  of  the  offence  of  bribery  is  riot  in  the  fact  that  one  man 
has  parted  with  his  money,  and  another  man  has  got  it ;  nor  in  the 
fact  that  an  erroneous  decision  is  made,  or  vote  given.  Lord 
Bacon  said  he  sold  justice,  and  not  injustice ;  and  no  man  gain 
said  it.  The  essence  of  the  crime  of  giving  and  taking  bribes 
consists  in  the  pressure  and  strain  which  are  thus  made,  and  in 
tended  to  be  made,  on  the  fallible  human  judgment  of  one  intrusted 
with,  authority. 

It  has  happened  in  this  State  that  the  vote  of  a  single  man  in 
the  Legislature  elected  the  Governor,  as  the  vote  of  a  single  man, 
in  this  Senatorial  election,  put  an  end  to  the  ballotings.  Suppose 


1851.]  ADDRESS   ON   THE   COALITION.  147 

a  man  to  have  stood  neutral,  not  being  wholly  satisfied  with  either 
candidate,  and  a  sum  of  money,  or  any  other  temptation,  is  held 
out  to  him  to  vote  for  one  of  them,  and  he  does  so.  Would  you  say 
he  was  to  be  held  innocent,  because,  on  the  whole,  he  thought  the 
man  for  whom  he  at  last  voted  was  best  qualified  for  the  place  ? 
Would  you  not  say  to  him,  your  crime  consisted  in  placing  yourself 
under  influences  which  did  not  leave  you  free  to  judge  ?  We  care 
nothing  about  your  acts  or  your  judgments  afterwards  ;  you  were 
corrupted  then,  and  deserve  punishment  therefor. 

It  has  also  been  suggested  that  this  was  not  a  corrupt  agree 
ment,  because  no  individual  who  was  a  party  to  it  received,  or  had 
reason  to  expect,  any  thing  from  it,  to  his  own  proper  use.  You 
cannot  know  that.  A  bargain  with  the  Democratic  party  to  put 
the  power  of  the  State  into  their  hands,  is  a  bargain  to  give  them 
the  means  to  reward  their  friends  and  punish  their  enemies.  How 
far  they  who  made  the  bargain  expected  to  profit  by  it,  either  by 
obtaining  offices  for  themselves,  or  their  friends  or  connections  or 
dependents,  or  by  ejecting  from  office  those  whom  they  desired  to 
injure,  no  man  can  tell.  It  is  in  the  recesses  of  the  mind,  inscru 
table,  except  to  the  eye  of  Him  who  looks  into  the  heart,  that  these 
things  lie  hid.  And  this  renders  such  bargains  the  more  dangerous. 
The  statute  law  can  reach  a  case  where  money  is  given  or  prom 
ised.  It  is  susceptible  of  proof.  But  nothing  but  the  wise  jeal 
ousy  of  the  people  can  afford  an  effectual  remedy  for  the  secret, 
pervading,  and  powerful  influence  of  hope  of  benefit,  springing  up 
in  the  hearts  of  leaders  of  a  political  party,  when  the  power  of  the 
State  is  held  out  to  them  as  an  inducement  to  violate  a  trust.  He, 
therefore,  who  seeks  to  purge  this  bargain  of  corruption  by  the 
assertion  that  the  parties  to  it  expected  no  selfish  benefit,  asserts 
what  he  cannot  know  to  be  true,  and  what  in  all  human  probability 
is  false.  It  is  unnecessary  to  refer  to  events  to  prove  this.  You 
know  it  must  be  so.  But  if  you  will  watch  the  executive  appoint 
ments  made,  and  which  may  be  made,  by  this  administration,  you 
will  see  a  practical  exemplification  of  this  truth. 

And  let  it  not  be  forgotten,  that  the  giver  is  as  guilty  as  the 
taker.  Let  not  the  Free-Soil  party  lay  the  flattering  unction  to 
their  souls,  that  they  are  not  to  be  suspected  of  entertaining  any 
such  selfish  hopes.  They  held  them  out  to  others ;  and  the  tempter 
is  by  all  men  justly  considered  worse  than  the  tempted. 

But  the  corruption  of  this  bargain  does  not  consist  solely  in  this. 


148  MEMOIR   OF   BENJAMIN   EOBBINS   CURTIS.  [1851. 

Its  essence  is  found,  not  merely  in  what  was  taken,  but  in  what 
was  yielded.  It  is  not  merely  that  the  Free-Soilers  were  to  have 
their  unnamed  man  for  Senator,  but  that,  in  consideration  thereof, 
they  were  to  vote  for  a  man  for  Governor  whom  they  distrusted.  It 
is  not  merely  that  the  Democrats  were  to  have  their  man  for  Gov 
ernor,  but  that,  in  consideration  thereof,  they  were  to  vote  for  a  man 
for  Senator  who,  so  far  as  is  even  now  known,  has  but  one  principle 
of  political  action,  and  that  hostile  to  the  long-cherished  and  repeat 
edly  and  solemnly  avowed  sentiments  and  wishes  of  the  Democracy 
of  the  State,  —  a  man  whose  only  rule  of  action  in  the  Senate  of 
the  United  States  must  be  to  create  what  every  American  states 
man,  from  the  time  of  Washington  to  the  present  moment,  has 
looked  upon  as  a  frightful  evil,  —  a  geographical  party, —  and 
which  the  Democracy  of  Massachusetts,  up  to  the  time  of  this 
bargain  and  its  execution,  had  always  shown  themselves  too  wise 
and  too  patriotic  to  aid  or  support ;  —  a  man  who,  from  the  neces 
sity  of  the  case,  by  consenting  to  take  this  office  under  and  by 
means  of  such  a  bargain,  must  thereby  consent  to  stand  as  a  receiver 
of  the  fruits  of  a  breach  of  a  public  trust,  and  to  go  into  a  repre 
sentative  assembly  to  exhibit  there  the  political  principle  of  a  small 
minority,  constituting  one  of  the  parties  to  the  bargain,  and  the 
want  of  principle  of  both  the  parties  by  reason  of  which  his  elec 
tion  was  made.  We  repeat,  it  is  not  merely  in  what  is  received, 
but  in  what  is  betrayed,  that  we  must  look  for  the  true  character 
of  this  transaction.1 

Another  ground  upon  which  this  bargain  has  been  defended  is, 
that  such  arrangements  are  common,  and  to  be  expected,  in  legis 
lative  assemblies.  If  this  be  so,  it  is  time  you  knew  it,  and  acted 
upon  it.  If  it  be  common  in  your  Legislature  for  members  to 

1  A  document  is  extant,  prepared  and  published  at  the  time  by  the  late 
Hon.  Henry  Wilson,  setting  forth  with  great  distinctness  and  frankness  the 
progress  and  all  the  details  of  this  bargain.  Mr.  Wilson  was  a  prominent 
actor  in  making  it,  and  a  political  beneficiary  under  it.  He  avowed  the 
whole  affair  with  great  naivetf,  and  while  Mr.  Sumner's  election  was  pending, 
he  claimed  that  the  Democratic  party,  having  received  the  consideration  for 
which  they  pledged  themselves  to  vote  for  the  nominee  of  the  Free-Soil 
party,  were  bound  in  honor  to  redeem  their  pledge  by  giving  Mr.  Sumner 
their  votes.  They  so  considered  it,  and  by  their  votes  finally  elected  him. 
The  minute  analysis  of  the  consideration  paid  which  was  made  by  Mr. 
Wilson,  and  the  distinct  display  which  he  makes  of  the  contract,  apparently 
without  the  slightest  conception  of  its  immoral  character,  render  his  docu 
ment  an  amusing  paper. 


1851.]  ADDRESS   ON   THE   COALITION.  149 

vote  against  their  own  convictions  of  right,  in  order  to  induce  other 
members  to  vote  against  their  convictions  of  right,  and  thus  secure 
to  each  some  selfish  or  party  ends,  at  the  expense  of  the  public,  — 
it  is  time  the  people  of  Massachusetts  swept  out  their  halls  of 
legislation,  and  purified  them  from  this  corruption.  The  assertion 
is  a  libel  on  the  honesty  of  the  State ;  and  no  man  will  make  it 
who  does  not  take  his  own  conscious  wickedness  as  the  standard 
by  which  to  measure  other  men's  honor.  That  such  things  have 
been  done,  we  are  forced  to  believe ;  and  the  impudence  with  which 
this  transaction  has  been  proclaimed  does  more  than  all  other 
things  known  to  us  to  lead  us  to  fear  that  their  true  character  is 
not  discerned  by  weak  men,  blinded  by  party  spirit.  That  selfish 
ness,  party  spirit,  rashness,  may  lead  men  of  loose  principles,  in 
the  halls  of  legislation  as  elsewhere,  to  do  corrupt  and  wicked 
things,  we  do  not  doubt.  But  that  they  are  common,  that  they 
have  become  a  usage,  that  they  have  passed  into  a  rule,  and  may 
be  appealed  to  as  a  principle,  we  beg  the  people  of  Massachusetts 
not  to  believe. 

We  deliberately  assure  you,  it  has  not  yet  become  common  for 
those  wrhom  you  select  to  represent  yourselves  so  grossly  to  abuse 
their  trust.  And  we  repel  with  indignation  the  assumption  that 
they  who,  by  inadvertence,  or  recklessness,  or  a  passionate  love  of 
power,  or  a  blind  devotion  to  party,  or  any  worse  motive,  have  be 
come  involved  in  this  immoral  and  illegal  compact,  can  find  an 
excuse  for  it  in  the  practices  of  any  legislative  assembly  known  to 
us.  But  we  feel  obliged,  not  only  to  say  that  such  conduct  finds 
no  excuse  in  example,  but  to  call  on  the  people  of  the  Common 
wealth  to  bear  their  testimony  against  it,  however  usual  it  may  be 
asserted  to  be.  It  is  not  uncommon  for  men  to  steal,  cheat,  and 
lie ;  but  the  moral  sense  of  mankind  does  not  permit  the  frequency 
of  these  crimes  to  be  their  justification. 

And  if  it  were  admitted  that  it  is  common  for  members  of  the 
Legislature  of  Massachusetts  to  enter  into  bargains  like  this,  it  is 
submitted  for  your  consideration,  whether  it  would  not  be  the  more 
necessary  that  you  should  hasten  to  place  thereon  the  seal  of  your 
condemnation.  That  public  morals  are  essential  to  public  order ; 
that  absolute  fidelity  to  public  trusts  is  the  only  secure  basis  of 
republican  government ;  and  that  no  people  is  safe  which  passes 
over  in  silence  even  questionable  acts  of  its  servants,  —  are  political 
truths  which  you  have  not  yet  to  learn.  That  it  is  not  lawful  to 


150  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1851. 

do  evil  that  good  may  come ;  that  there  is  not  one  rule  of  right  in 
the  Capitol,  and  another  by  your  firesides ;  that  the  crooked  paths 
of  intriguers  and  schemers  are  not  safe  ways  for  honest  men  to 
travel,  —  no  people  knows  better  than  yourselves.  We  ask  you  to 
apply  these  principles  to  this  matter.  You  have  placed  us  as  sen 
tinels  upon  the  watch-towers.  We  have  discerned  these  things 
which  seem  to  us  to  threaten  your  security  and  welfare.  With  an 
earnest  desire  to  do  no  injury  to  any  man,  —  with  the  judgment 
wherewith  we  should  be  content  to  be  judged,  —  without  passion,  but 
without  fear,  we  have  endeavored  to  do  our  duty  to  the  Common 
wealth  and  to  you,  by  making  known  these  transactions.  You  will 
determine  whether  your  interests  are  safe  in  the  hands  of  men 
who  have  grasped  the  offices  and  power  of  the  State  by  such  means  ; 
and  whether  you  are  willing  to  commend  to  your  children  this 
example  as  safe  to  guide  their  steps. 

The  four  instances  of  which  I  have  given  some  account 
in  this  and  the  preceding  chapter,  are  the  only  ones  in 
which  Mr.  Curtis  undertook,  by  any  special  effort,  to  act 
upon  public  opinion  during  the  period  from  1834  to  1851. 
They  constitute  exceptions  to  his  ordinary  rule  of  life,  the 
exceptions  themselves,  however,  resting  upon  that  part  of 
the  rule  which  habitually  governed  him,  —  namely,  to  speak 
or  act  upon  public  affairs  whenever  the  occasion  or  the  topic 
made  it,  in  his  own  judgment,  his  duty  to  do  so.  His  reti 
cence  on  the  ordinary  subjects  of  political  discussion  or 
party  contest  was  not  broken  at  any  time  before  he  became 
a  judge ;  and,  of  course,  it  was  never  broken  while  he  was 
on  the  bench.  He  took  no  part  in  party  politics,  —  stood 
entirely  aloof  from  all  the  managements  of  parties ;  and  it 
is  not  known  to  me  that  during  this  period  he  ever  attended 
a  political  caucus,  or  was  ever  a  member  of  any  political 
convention.  Nor  did  he  employ  his  pen  in  political  essay- 
writing,  whether  in  his  own  name  or  in  anonymous  com 
munications  or  contributions  to  the  press.  At  elections  he 
always  voted ;  and  he  generally  voted  for  the  candidates 
of  the  Whig  party  while  that  organization  continued  to 
exist. 


1851.]  NO   PARTISAN   TENDENCIES.  151 

And  here  it  may  be  proper  to  ask,  whether  it  was  not  far 
wiser  for  such  a  man  to  abstain  from  all  party  activity,  and 
to  make  himself  heard  only  when  some  important  public 
interest  or  public   duty  seemed  to  call   upon  him  with  a 
more  than  ordinary  demand,  than  it  would  have  been  to 
have  become  known  as  a  politician,  or  to  have  engaged  his 
intellect  or  his  feelings  in  the  discussion  of  public  questions 
of  minor  importance.     During  the  seventeen  years  which  I 
have  now  gone  over,  he  was,  as  a  lawyer,  by  his  varied 
experience  in  all  departments  of  jurisprudence,  and  his  in 
creasing  acquisitions,  laying  up  the  store  of  those  qualifi 
cations  for  the  judicial  office  which  were  at  once  recognized 
by  the  public  of  his  own  section  of  the  country,  and  by  the 
government  of  the  Union  as  soon  as  an  opportunity  offered 
for  securing  his  services  in  the  national  judicature.     Cer 
tainly  it  could  have  been  no  advantage  to  the  development 
of  his  mind  and  character,  and  no  help  to  the  public  sense 
of  his  fitness  for  the  judicial  place  to  which  he  was  called, 
if  he  had  devoted  himself  to  party  politics.     It  is,  moreover, 
worthy  of  note,  that  even  the  questions  of  public  interest 
on  which  he  did  act,  exciting  as  they  were  to  most  men, 
had  no  tendency  to  warp  his  mind  into  a  one-sided  condition, 
or  to  deprive  him  of  the  power  of  just  and  accurate  discrimi 
nation  in  regard  to  other  aspects  of  the  same  subject.     He 
made,  for  example,  as  the  reader  has  seen,  great  efforts  to 
convince  his  fellow-citizens  that  the  slave-holding  States 
and  their  people  had  every  right  to  the  full  and  faithful 
execution  of  that  constitutional  stipulation  which  required 
the  extradition  of  fugitive  slaves.     But  when  the  demands 
of  the  slave  interest  —  as  they  were  afterwards  asserted  by 
those  who  claimed  to  represent  the  interests  of  the  South  — 
extended  beyond  that  stipulation,  and  claimed  for  slavery  a 
position  which  he   believed  neither   the  Constitution   nor 
the  system  of  the   Union  had  given  to  it,  his  mind  was 
found  to  be  just  as  capable  of  an  unbiassed  and  impartial 
examination  of  those  demands  as  if  he  had  never  contended 


152  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1851. 

for  a  Southern  right,  or  counselled  his  fellow-citizens  to 
obey  a  stipulation  in  favor  of  the  Southern  section  of  the 
Union.  Nor  did  his  strong  convictions  of  the  duty  of  obey 
ing  that  provision  of  the  Constitution,  or  his  disapprobation 
of  the  conduct  of  those  who  opposed  it,  abate  one  jot  from 
the  even  judicial  temper  and  the  perfect  fairness  with 
which  he  could  preside  at  the  trials  of  persons  accused  of 
unlawful  resistance  to  the  measure  designed  for  its  exe 
cution. 


1851.]  APPOINTED   TO  THE  BENCH.  153 


CHAPTER    VI. 

1851-1856. 

Appointed  an  Associate  Justice  of  the  Supreme  Court  of  the  United  States. 
—  Letter  to  President  Fillmore  and  Mr.  Webster.  —  The  "Fugitive  Slave 
Trials"  in  Boston.  —  Judicial  Life  at  Washington. — Letters  to  Mr. 
Ticknor. 

THE  death  of  Mr.  Justice  Woodbury,  which  occurred  on 
the  4th  of  September,  1851,  cast  upon  the  administration  of 
President  Fillmore  the  performance  of  one  of  the  most  im 
portant  duties  that  can  devolve  on  the  national  Executive, 
—  that  of  naming  a  Judge  of  the  Supreme  Court  of  the 
United  States.  The  Circuit  for  which  the  vacancy  was  to 
be  filled  comprehended  Massachusetts,  Maine,  New  Hamp 
shire,  and  Rhode  Island.  Public  opinion,  both  in  and  out 
of  the  Circuit,  pointed,  with  a  near  approach  to  unanimity, 
to  Mr.  Curtis,  as  the  man  whose  services  in  that  position 
it  was  most  desirable  to  secure.  President  Fillmore  had 
but  little  personal  knowledge  of  the  leading  members  of 
the  bar  of  New  England  whom  he  had  not  met  in  public 
life.  But  he  was  a  wise  and  circumspect  statesman,  and 
one  who  fully  appreciated  the  responsibilities  of  the  great 
office  which  he  held.  He  would  have  felt  it,  to  the  end  of 
his  days,  to  be  a  reproach  on  his  administration  of  the  gov 
ernment,  if  he  had  selected  for  this  position  any  one  whom 
he  could  be  said  to  have  appointed  from  any  motives  but 
those  high  considerations  of  the  public  good,  which  should 
ever  and  alone  be  regarded  in  the  making  of  judges.  How 
steadily  and  faithfully  he  looked  to  the  public  interests  will 
presently  be  seen. 


154  MEMOIR   OF  BENJAMIN  BOBBINS   CUKTIS.  [1851. 

Mr.  Webster,  who  had  become  Secretary  of  State  at  the 
same  time  when  Mr.  Fillmore  became  President,  was  of 
course  familiarly  acquainted  with  the  members  of  the  bar 
from  among  whom  this  appointment  would  have  to  be 
made.  There  were  reasons,  in  his  judgment,  which  ren 
dered  it  proper  that  Mr.  Choate  should  be  consulted.  The 
President,  who  was  in  Washington,  and  Mr.  Webster,  who 
was  at  the  moment  in  Boston,  wrote  to  each  other  on  this 
subject  on  the  same  day,  and  consequently  their  letters 
crossed  each  other  in  the  mails.  Mr.  Webster's  may  be 
first  quoted,  as  it  exhibits  the  general  opinion  and  wishes, 
as  well  as  his  own :  — 

MR.  WEBSTER  TO  THE  PRESIDENT. 

BOSTON,  Sept.  10,  1851. 

MY  DEAR  SIR,  —  A  very  important  vacancy  is  created  by 
Judge  Woodbury's  death.  The  general,  perhaps  I  may  say  the 
almost  universal,  sentiment  here  is,  that  the  place  should  be  filled 
by  the  appointment  of  Mr.  B.  R.  Curtis.  Mr.  Choate  is  perhaps 
Mr.  Curtis's  leader,  and  is  more  extensively  known,  as  he  has  been 
quite  distinguished  in  public  life.  But  it  is  supposed  he  would  not 
accept  the  place.  He  must  be  conferred  with,  and  I  should  have 
seen  him  to-day,  but  he  is  out  of  town.  I  shall  see  him  as  soon 
as  possible.  Every  thing  being  put  at  rest  in  that  quarter,  as  I 
presume  it  will  be  the  moment  I  can  see  Mr.  Choate,  I  recommend 
the  immediate  appointment  of  Mr.  Curtis.  There  will  be  an  ad 
vantage  in  disposing  of  the  matter  as  soon  as  may  be.  Judge 
Sprague  is  now  on  his  way  home  from  Europe.  His  friends,  no 
doubt,  will  urge  his  pretensions.  Judge  Pitman  too,  the  District 
Judge  of  Rhode  Island,  is  a  learned  lawyer,  an  able  judge,  and  an 
excellent  man.  If  an  appointment  were  to  be  made  by  promotion 
from  the  bench  of  a  District  Court,  it  would  be  very  difficult  to 
overlook  Judge  Pitman,  who  has  been  on  the  bench  more  years, 
by  a  good  many,  than  Judge  Sprague,  and  working  at  a  much 
smaller  salary.  But,  in  my  judgment,  it  is  decidedly  better  to 
appoint  a  man  much  younger  than  either  of  these  judges.  Mr. 
B.  R.  Curtis  is  of  a  very  suitable  age,  forty-one  ;  he  has  good 
health,  excellent  habits,  sufficient  industry  and  love  of  labor,  and, 


1851.]  APPOINTED  TO   THE   BENCH.  155 

^E  need  hardly  add,  is  in  point  of  legal  attainment  and  general 
character  in  every  way  fit  for  the  place.  ...  I  shall  write  you 
again  on  this  subject  the  moment  I  have  seen  Mr.  Choate,  or  heard 
from  him. 

We  were  all  horror-struck  this  morning  by  the  terrible  news  of 
the  death,  so  sudden,  of  Mrs.  Crittenden. 

Yours,  always  truly,  DANIEL  WEBSTER. 

THE  PRESIDENT  TO  MR.  WEBSTER. 

WASHINGTON,  Sept.  10,  1851. 

MY  DEAR  SIR,  .  .  .  The  vacancy  occasioned  by  the  death  of 
Judge  Woodbury  will  soon  have  to  be  filled,  and  I  should  be  happy 
to  see  you,  that  we  might  converse  freely  on  the  subject.  I  believe 
that  Judge  McLean  is  the  only  Whig  now  upon  the  bench  ;  and  he 
received  his  appointment  from  General  Jackson.  I  am  therefore 
desirous  of  obtaining  as  long  a  lease,  and  as  much  moral  and  ju 
dicial  power  as  possible,  from  this  appointment.  I  would  therefore 
like  to  combine  a  vigorous  constitution  with  high  moral  and  in 
tellectual  qualifications,  a  good  judicial  mind,  and  such  age  as  gives 
a  prospect  of  long  service.  Several  distinguished  names  have 
occurred  to  me,  but  I  do  not  consider  myself  so  intimately  ac 
quainted  with  the  New  England  bar  as  to  be  able  to  form  a  correct 
opinion.  I  have,  however,  formed  a  very  high  opinion  of  Mr. 
B.  R.  Curtis.  What  do  you  say  of  him  ?  What  is  his  age,  con 
stitution,  and  what  are  his  legal  attainments  ?  Does  he  fill  the 
measure  of  my  wishes  ? 

The  weather  is  extremely  hot  and  uncomfortable.  Nothing 
new. 

I  am  truly  yours,  MILLARD  FILLMORE. 

THE  PRESIDENT  TO  MR.  WEBSTER. 

WASHINGTON,  Sept.  12,  1851. 

MY  DEAR  SIR,  ...  I  am  happy  to  see  that  we  concur  in  opinion 
as  to  Mr.  B.  R.  Curtis.     I  shall  wait  until  you  can  see  Mr.  Choate, 
and,  if  all  is  satisfactory,  I  will  issue  the  commission  at  once.  .  .  . 
I  write  in  haste,  but  am  truly  yours, 

MILLARD  FiLLMORE.1 

1  These  letters  have  been  heretofore  published,  in  the  Life  of  Mr.  Webster, 
by  the  present  writer. 


156  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1851. 

The  President  made  a  short  visit  to  Boston,  soon  after 
the  date  of  his  last  letter  to  Mr.  Webster,  and  was  then 
informed  that  Mr.  Choate  heartily  concurred  with  the 
general  wish  that  this  appointment  should  be  tendered  to 
Mr.  Curtis.  It  was  made  immediately  after  the  President 
returned  to  Washington.  The  commission  bore  date  Sep 
tember  22,  1851.1 

With  what  feelings  it  was  received  by  the  person  to 
whom  it  was  addressed,  will  be  apparent  from  the  following 
letter  :  — 

To  THE  PRESIDENT  OF  THE  UNITED  STATES. 

BOSTOX,  Oct.  7,  1851. 

MR.  PRESIDENT,  —  On  my  return  home,  after  an  absence  of 
ten  days  in  a  distant  city,  where  I  went  to  discharge  a  professional 
engagement,  I  have  received  from  the  Secretary  of  State  a  com 
mission  as  an  Associate  Justice  of  the  Supreme  Court  of  the  United 
States.  You  have  been  pleased  to  appoint  me  to  an  office  of  great 
dignity  and  power,  and  of  corresponding  responsibility.  I  accept 
the  office.  The  only  return  I  can  make  —  I  am  sure  the  only 
return  you  desire  —  for  having,  unsolicited,  conferred  upon  me 
this  honor,  is  to  do  my  duty  to  my  country,  in  this  great  office,  with 
entire  fidelity.  This  return  I  can  and  do  promise  to  make,  accord 
ing  to  the  utmost  of  my  ability. 

Will  you  allow  me  to  suggest  that  by  the  act  of  Congress  of  the 
29th  of  April,  1802,  section  4,  it  is  necessary  for  the  President  to 
allot  the  circuits  anew  on  the  appointment  of  an  Associate  Justice, 
and  that  I  cannot  act  until  such  allotment  shall  have  been  made. 
As  there  is  to  be  a  term  of  the  Circuit  Court  at  Boston  on  the  loth 
instant,  at  which  my  presence  is  very  desirable,  I  would  respect 
fully  request  that  such  allotment  may  be  made,  and  notified  to  me 
in  season  to  enable  me  to  sit  at  that  term. 
With  the  highest  respect, 

I  am  your  obedient  servant,         B.  R.  CURTIS. 

The  President,  by  an  instrument  executed  under  the 
seal  of  the  United  States,  in  the  usual  form,  on  the  10th 

1  Judge  Curtis  was  nominated  to  the  Senate,  December  11,  1851,  and  con 
firmed  December  20,  on  which  day  his  last  commission  was  issued. 


NT 

1851.]  LETTER   TO   MR.  WEBSTEB.\  157 

of  October,  1851,  allotted  to  Benjamin  R.  Curtis  the  duties 
of  Judge  of  the  First  Circuit  of  the  United  States.  As 
the  appointment  had  been  made  in  the  recess  of  the  Senate, 
it  could  subsist  only  until  the  end  of  the  next  session  of 
that  body,  unless  it  should  be  confirmed  before  the  expira 
tion  of  that  session.  But  in  the  mean  time  the  Judge  had 
full  authority  to  act.  Judge  Curtis  took  the  oath  of  office 
on  the  10th  of  October,  1851.  The  regular  term  of  the 
Circuit  Court,  at  Boston,  commenced  on  the  15th  of  that 
month. 

The  following  letter  to  Mr.  Webster,  written  after  he 
had  been  for  a  month  engaged  in  the  business  of  the  Cir 
cuit,  exhibits  his  views  of  the  different  functions  of  a 
judge : — 

To  MR.  WEBSTER. 

93  BEACON  ST.,  Nov.  16,  1851. 

DEAR  SIR,  —  I  thank  you  for  the  notice  of  Judge  Patterson, 
which  I  should  not  otherwise  have  seen.  It  is  full  of  good  sense, 
and,  so  far  as  I  can  judge  from  some  knowledge  of  his  recorded 
opinions,  it  is  true.  But  the  recorded  opinions  of  a  judge,  as  you 
know,  present  only  one  side  of  his  judicial  character  and  mind. 
To  write  an  able,  learned,  and  satisfactory  opinion  of  a  case  is  cer 
tainly  not  easy  ;  and  in  reference  to  the  science  of  the  law  and  to 
the  ultimate  decision  of  causes  which  have  advanced  to  that  stage, 
it  is  often  very  important.  But  it  has  seemed  to  me  that  a  far 
more  difficult  and  useful  field  of  labor,  speaking  generally,  is  the 
safe,  prompt,  judicious,  and  wise  controlling  power  of  a  judge  on 
the  Circuit.  I  have  no  doubt  that  every  quality  and  attainment  of 
which  a  judge  is  capable  may  there  find  their  fullest  exercise  and 
their  most  difficult  work.  I  presume  you  will  agree  with  me,  that 
there  is  no  field  for  a  lawyer  which,  for  breadth  and  compass  and 
the  requisitions  made  on  all  the  faculties,  can  compare  with  a  trial 
by  jury ;  and  I  believe  it  is  as  true  of  a  judge  as  of  a  lawyer,  that 
in  the  actual  application  of  the  law  to  the  business  of  men,  mingled 
as  it  is  with  all  passions  and  motives  and  diversities  of  mind,  tem 
per,  and  condition,  in  the  course  of  a  trial  by  jury,  what  is  most 
excellent  in  him  comes  out,  and  finds  its  fitting  work,  and  whatever 
faults  or  weaknesses  he  has  are  sensibly  felt. 


158  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1851. 

Perhaps  the  necessities  of  the  country  may  some  day  require 
that  the  judges  of  the  Supreme  Court  should  sit  only  as  a  court  of 
error ;  but  it  will  certainly  be  a  loss  to  the  country,  and  an  injury 
to  the  judges  themselves,  when  they  cease  to  come  directly  in 
contact  with  the  people  on  the  circuits,  and  when  they  are  no 
longer  required  to  apply  the  law  to  evidence  of  facts,  —  a  process 
not  very  satisfactory  to  the  mind,  but,  in  my  opinion,  of  eminent 
utility. 

I  have  been  led  into  these  thoughts  by  reading  this  notice  of 
Mr.  Justice  Patterson,  and  asking  myself  what  I  knew  about 
him.  No  doubt  they  are  all  very  familiar  to  you,  but  if  they  agree 
with  your  own  opinions  you  will  not  be  sorry  that  I  have  learned 
these  lessons  which  I  hope  to  practise. 

Your  obedient  servant, 

B.  R.  CURTIS. 

Rarely  lias  any  man  entered  upon  a  high  judicial  position 
under  circumstances  more  calculated  to  test  the  fibre  of  his 
character,  than  those  which  in  Massachusetts  surrounded 
Judge  Curtis  on  his  accession  to  the  bench.  If  the  cases 
which  awaited  his  judicial  action  had  been  merely  in  the 
ordinary  routine  of  civil  or  criminal  trials,  unconnected 
with  subjects  that  deeply  excited  the  public  mind,  there 
would  have  been  nothing  to  call  for  special  notice  here, 
beyond  the  manner  in  which  he  appeared  to  be  qualified 
for  the  usual  duties  of  the  place.  But,  as  we  have  seen, 
it  was  a  period  in  the  history  of  our  country  when  the  au 
thority  of  the  national  government  was  put  to  a  severe  trial. 
A  government  popular  in  its  form,  and  accustomed  to  rely 
largely  on  popular  submission  to  its  laws,  was  obliged  to 
make  it  manifest  that  it  had  the  strength,  irrespective  of 
popular  and  local  feelings,  to  execute  any  law  which  the 
legislative  power  had  enacted,  until  it  should  be  determined 
by  proper  judicial  authority  that  the  law  was  not  warranted 
by  the  Constitution.  It  is  difficult  now,  for  two  reasons,  to 
make  appreciable  to  younger  generations,  how  the  excite 
ments  of  this  period  put  to  the  proof  the  force  and  steadi 
ness  of  individual  character.  It  is  difficult,  in  the  first 


1851.]         NORTHERN  AND   SOUTHERN  EXTREMISTS.  159 

place,  because  those  excitements  had  relation  to  the  subject 
of  slavery,  in  regard  to  which  the  sympathies  of  mankind 
are  now  no  longer  called  upon  to  yield  to  the  authority  of 
positive  law ;  and,  in  the  second  place,  because  the  senti 
ment  of  loyalty  to  the  Union  and  the  Constitution  was,  at 
a  later  period,  by  the  apparent  necessities  of  a  civil  war, 
made  to  take,  in  the  popular  feeling  of  the  Northern  section 
of  the  Union,  the  shape  of  opposition  and  hostility  to  the 
Southern  section,  and  the  interests  and  objects  which  that 
section  appeared  to  assert  and  uphold.  He,  however,  who 
would  do  justice  to  the  acts  and  motives  of  men  who  took 
any  part  in  public  affairs  during  the  decade  immediately 
preceding  our  civil  war,  must  learn  that  in  many  of  the 
Northern  communities,  and  especially  in  New  England, 
during  that  period,  the  duty  of  loyalty  to  the  Union  and  the 
Constitution  rendered  it  necessary  to  encounter  a  local 
feeling,  which  was  the  direct  reverse  of  that  which  after 
wards  blazed  forth  in  defence  of  the  national  authority. 
This  duty  rested  upon  individual  consciences  then  with 
the  same  force,  and  depended  upon  the  same  principles  as 
those  which  were  at  a  later  period  so  commonly  felt  and  acted 
upon  by  multitudes,  when  both  the  authority  and  the  ex 
istence  of  the  national  government  were  put  in  peril  by  the 
attempted  disruption  of  the  Union  which  arose  in  the  South 
ern  section  of  our  country.  If  in  1851  the  arguments,  the 
doctrines,  and  the  feelings  of  men  in  the  North,  who  rejected 
the  Constitution  because  one  of  its  provisions  was  repugnant 
to  their  feelings,  or  to  what  they  deemed  their  interests, 
were  sound  and  defensible,  the  arguments,  the  doctrines, 
and  the  sentiments  of  men  in  the  South,  who  in  1861  re 
jected  the  bonds  of  the  Constitution  because  they  felt  that 
their  local  interests  or  safety  required  them  to  quit  the 
Union,  were  equally  sound  and  equally  defensible.  If,  on 
the  contrary,  there  was  a  deeper  ground  of  civil  and  moral 
obligation  to  maintain  the  Union  and  obey  the  Constitution 
than  any  local  feelings  or  interests  could  alone  afford,  then 


160  MEMOIR   OF  BENJAMIN  BOBBINS   CTJKTIS.  [1851. 

the  Northern  extremists  of  1851  and  the  Southern  extremists 
of  1861  were  alike  in  the  wrong. 

To  one  who,  at  the  earlier  period  of  which  I  here  speak, 
was  placed  in  a  judicial  position  which  made  it  necessary  for 
him  to  assert  the  authority  of  the  national  government,  of 
course  the  trial  of  character  would  bear  most  strongly  upon 
his  power  to  hold  the  scales  of  justice  with  both  a  firm  and 
an  impartial  hand.  It  is  not  an  easy  thing  to  do  this,  in 
the  midst  of  a  great  popular  excitement,  when  the  magis 
trate  feels  a  strong  disapprobation  of  the  conduct  of  those 
with  whose  acts  he  has  to  deal,  and  when  he  deems  the 
excitement  unnecessary  and  unjustifiable.  If  he  exhibits  a 
bias  against  those  who  are  accused  of  unlawful  acts,  he 
exhibits  that  which  marks  him  as  a  weak  judge,  although 
it  is  that  which  we  sometimes  expect  of  human  nature.  If 
he  rises  above  all  feeling  and  all  prejudice,  to  that  supreme 
temper  of  the  mind  which  knows  nothing  and  regards  noth 
ing  but  the  law  and  the  evidence,  which  seeks  neither  con 
viction  nor  acquittal  save  for  the  ends  of  justice,  we  know 
that  the  great  interests  of  justice  are  safe  in  his  hands.  It 
is  exceedingly  easy  to  be  a  high-prerogative  judge,  — to  treat 
the  claims  of  government  as  if  they  were  every  thing,  and 
the  rights  and  safety  of  the  citizen  as  if  they  were  nothing. 
To  be  an  absolutely  impartial  judge,  between  government 
and  citizen,  is  not  so  easy,  and  it  is  a  character  as  rare  as 
it  is  difficult  of  attainment. 

One  of  the  earliest  judicial  duties  which  Judge  Curtis 
was  called  upon  to  perform  was  to  preside  at  the  trial  of  a 
young  man  of  color,  who  was  a  member  of  the  bar,  and  who 
was  indicted  for  a  misdemeanor  under  the  act  of  Congress 
known  as  the  Fugitive  Slave  Law. 

The  misdemeanor  consisted  in  the  forcible  rescue  of  an 
alleged  fugitive  slave  from  the  hands  of  the  Marshal,  while 
he  was  held  for  examination  under  a  warrant  issued  pursu 
ant  to  the  statute.  The  rescue  was  effected  in  open  day,  by 
a  mob  composed  of  a  comparatively  small  number  of  men, 


1851.1  RESCUE   CASES.  161 

who  burst  into  the  court-room  in  Boston,  where  the  negro 
was  held  by  the  Marshal's  officers,  during  a  temporary 
adjournment  which  had  been  allowed  by  the  examining 
magistrate  in  order  that  the  supposed  fugitive  might  obtain 
the  assistance  of  counsel.  There  was  strong  reason  to 
believe  that  the  rescue  was  a  premeditated  act,  by  persons 
who  had  combined  to  prevent  by  force  the  execution  of  this 
particular  law  in  all  cases.  If  this  was  the  fact,  the  offence 
amounted  to  treason  against  the  United  States,  and  the 
rescue  was  an  overt  act  in  a  capital  crime.  It  wras  so 
understood  by  the  authorities  at  Washington.  No  govern 
ment  that  was  worthy  of  respect  could  overlook  such  an 
offence.  Prompt  directions  were  given  to  the  District 
Attorney  to  prosecute  the  offenders.  When  the  grand-jury 
of  the  district  came  to  examine  the  affair,  it  was  deemed 
best  to  indict  for  a  misdemeanor  only.  Among  other  cases, 
an  indictment  for  a  misdemeanor  was  found  against  the 
young  colored  lawyer  above  referred  to,  who  appeared,  on 
the  evidence  presented  to  the  grand-jury,  to  have  had  some 
connection  with  the  rescue.  The  indictment  was  found 
before  Judge  Curtis  came  upon  the  bench,  and  was  returned 
into  the  District  Court,  whence  it  was  removed  for  trial  into 
the  Circuit  Court.  It  was  tried  before  Judge  Curtis  and 
the  District  Judge,  Hon.  Peleg  Sprague,  in  November, 
1851. 

While  one  of  the  counsel l  for  the  defendant  in  this  case 
was  addressing  the  jury,  he  claimed,  as  a  proposition  of  law, 
that  in  criminal  cases  the  jury  were  the  rightful  judges  of 
the  law,  as  well  as  of  the  fact ;  and  he  urged  that,  if  any 
of  them  conscientiously  believed  the  act  of  1850,  commonly 
called  the  Fugitive  Slave  Act,  to  be  unconstitutional,  they 
were  bound  by  their  oaths  to  disregard  any  direction  to  the 
contrary  which  the  court  might  give  them.  He  was  pro 
ceeding  to  address  the  jury  in  support  of  this  proposition, 
when  he  was  stopped  by  the  court,  and  informed  that  he 

1  Hon.  John  P.  Hale,  of  New  Hampshire. 
VOL.  i.  11 


162  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1851. 

could  not  be  permitted  to  argue  it  to  the  jury,  but  that  the 
court  would  hear  him,  and  if  they  should  be  of  opinion  that 
the  proposition  was  true,  the  jury  would  be  so  instructed. 
The  counsel  then  addressed  the  court  in  support  of  his 
position.  On  the  following  day,  Judge  Curtis  pronounced 
the  opinion  of  the  court,  holding  that,  under  the  Constitu 
tion  and  laws  of  the  United  States,  the  jury  are  not  the 
judges  of  the  law  in  a  trial  for  a  crime ;  they  are  to  take 
the  law  from  the  court  and  apply  it  to  the  facts  which  they 
may  find  from  the  evidence,  and  thus  frame  their  general 
verdict  of  guilty  or  not  guilty. 

This  opinion,  although  heretofore  accessible  in  the  regu 
lar  Reports  of  the  Circuit,1  it  has  been  thought  proper  to 
include  in  the  present  collection  of  Judge  Curtis's  writings, 
on  account  of  the  clearness  and  accuracy  with  which  it 
defines  the  respective  functions  of  the  court  and  the  jury  in 
criminal  cases.  The  substance  of  the  charge  delivered  to 
the  jury,  on  the  facts,  is  also  printed  in  the  second  volume 
of  this  work,  because  of  the  remarkable  proof  which  it 
affords  of  complete  judicial  impartiality  ;  and  in  this  con 
nection  it  may  be  observed  that  the  biographer  is  not  the 
first  to  claim  for  Judge  Curtis  this  praise,  but  that  it  has 
always  been  claimed  or  conceded  by  those  who  were  most 
deeply  interested  in  the  result  of  the  trials,  and  who  were 
sufficiently  cool  and  sufficiently  free  from  prejudice  to 
appreciate  the  conduct  of  a  judge  in  prosecutions  of  this 
nature.  At  the  meeting  of  the  bar  of  the  Circuit  Court, 
held  in  Boston  after  the  death  of  Judge  Curtis,  Mr. 
Richard  H.  Dana,  Jr.  made,  among  others,  the  following 
remarks :  — 

About  twenty-two  years  ago,  the  bar,  the  political  world,  and 
the  public  were  extremely  excited  by  the  Fugitive  Slave  trials. 
There  was  a  strong  tide  setting  for  the  conviction  of  the  rescuers. 
I  felt  deeply  on  the  subject,  on  account  of  my  political  opinions 
and  as  counsel  in  the  cases.  Judge  Curtis  presided.  I  regretted 

1  Curtis's  Circuit  Court  Reports,  vol.  i.  p.  23. 


1851. j  JUDICIAL   LIFE   IN   WASHINGTON.  163 

deeply  the  conclusions  to  which  he  had  arrived  on  the  law.  I 
knew  he  would  conduct  the  trials  with  impartiality.  What  I  now 
wish  to  say  is,  that  I  felt  then,  and  have  felt  ever  since,  that  there 
was  in  the  conduct  of  those  trials  more  than  passive  impartiality. 
There  was,  on  his  part,  an  affirmative  determination  that  the  trial 
should  be  had  with  absolute  fairness.  At  a  critical  stage  of  one 
case,  he  volunteered  a  suggestion  in  favor  of  the  accused,  as  to  the 
weight  of  testimony,  which,  I  think,  in  the  measuring  cast,  secured 
the  verdict  of  acquittal.  And  they  who  remember  how  things 
stood  at  Washington  in  those  days  will  see  the  force  of  the  sugges 
tion  that  Judge  Curtis  had  not  been  confirmed  by  the  Senate,  but 
was  acting  upon  an  executive  appointment  made  during  a  recess  of 
the  Senate.1 

These  and  other  duties  at  the  Circuit  in  Massachusetts 
and  Rhode  Island  being  discharged,  Judge  Curtis  repaired 
to  Washington,  and  took  his  seat  on  the  bench  of  the  Su 
preme  Court  at  its  regular  term,  commencing  in  December, 
1851.  His  reputation  had  preceded  him.  He  was  received 
by  the  other  judges  with  the  greatest  cordiality  and  respect. 
All  of  them  were  men  much  older  than  himself.  Mr.  Jus 
tice  Grier,  who  was  of  a  playful  humor,  began  at  once  to 
refer  to  him  affectionately  as  "  Benjamin,  our  youngest 
brother."  All  were  gratified  by  this  accession  of  young 
vigor  and  abundant  learning,  giving  promise  of  assistance 
not  a  little  needed,  and  of  work  sure  to  be  effectively  per 
formed. 

After  he  had  been  in  Washington  for  a  month,  he  wrote 
as  follows :  — 

To  MR.  TICKNOR. 

WASHINGTON,  Dec.  27,  1851. 

MY  DEAR  UNCLE,  —  I  have  now  been  here  four  weeks,  —  long 
enough  to  be  settled  both  in  my  abode  and  occupations.  I  live  at 
Brown's  new  hotel,  where  I  have  a  comfortable  and  pleasant, 
though  small  room,  and  there  are  some  pleasant  people  in  the 

1  The  charge  to  the  jury  is  to  be  found  infra,  Vol.  II.  Consult  the  Index, 
verb.  "  United  States  v.  Robert  Morris." 


164  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1851. 

house.  Judge  and  Mrs.  McLean,  and  Judge  and  Mrs.  Catron,  live 
here,  and  probably  Judge  Wayne  will  come  here  on  his  return 
from  New  York,  where  he  now  is.  The  bench  is  full,  with  the 
exception  of  Judge  McKinley,  and  we  have  made  uncommon  good 
progress  in  our  work.  But  it  is  already  so  great  as  to  be  beyond 
the  ability  of  the  court  to  despatch  it ;  and  when  the  Texas  and 
California  land-titles  get  here,  Congress  will  probably  see  that  the 
judicial  system  of  the  country,  fitted  for  fourteen  States,  with  no 
Circuit  Court  west  of  the  mountains,  is  not  adequate  to  do  the  busi 
ness  of  the  United  States  now,  when  there  are  thirty-one  States, 
and  about  four  times  as  many  people,  and  more  than  five  times  the 
wealth.  In  the  days  when  Chief  Justice  Marshall  used  to  deliver 
those  great  opinions,  the  calendar  had  about  thirty  causes  on  it ; 
now  it  has  two  hundred  and  sixteen.  I  think  there  can  be  no  ques 
tion  that,  when  the  next  administration  comes  in,  the  judges  of  the 
Supreme  Court  will  be  relieved  from  all  duty  out  of  that  court,  and 
two  sessions  a  year  will  be  held  ;  in  which  event,  I  shall  live  and 
keep  house  here  a  part  of  the  year.  I  find  rent,  and  all  the  neces 
sary  expenses  of  living,  are  less  than  in  Boston,  —  I  said  to  Mr. 
Appleton  about  twenty  per  cent  less,  and  he  replied  he  thought  so, 
and  he  is  a  good  judge.  They  [the  Appletons]  live  in  a  large  house 
on  the  corner  of  President  Square,  and  entertain  a  good  deal,  and 
of  course  handsomely.  I  have  dined  there  twice,  —  the  last  time  on 
Christmas  day.  He  evidently  likes  his  position  here.  He  said  to 
me  that,  when  he  came  first  into  the  House,  he  was  so  entirely  un 
accustomed  to  the  whole  thing  that  he  felt  almost  lost ;  but,  he 
added,  with  great  simplicity,  "  by  keeping  quiet,  I  find  people  talk 
ing  of  things  that  I  know  more  about  than  they  do."1  I  met 
Mr.  Webster  at  the  Seatons'  last  week,  and  he  said,  "  I  have  just 
had  the  pleasure  of  signing  your  commission."  This  was  the  first 
intimation  I  had  had  that  my  nomination  had  been  made  to  the 
Senate.  The  next  morning  the  commission  came.  I  do  not  hear 
much  of  politics,  for  there  is  a  real  and  true  separation  of  the 
bench  from  politicians  here,  with  perhaps  one  exception,  —  and  I  do 
not  know  that  there  is  any  exception.  But  I  think,  from  all  I  see 
and  hear,  Mr.  Webster's  chance  for  a  nomination  is  very  small. 
If  the  Democratic  party  should  nominate  General  Cass,  or  some 

1  The  Hon.  William  Appleton,  an  eminent  merchant  in  Boston,  who 
had  a  short  time  before  accepted  a  seat  in  Congress,  is  the  person  here 
referred  to. 


1851.]  JUDICIAL   LIFE  IN   WASHINGTON.  165 

other  civilian  from  the  North,  the  Whig  party  may  possibly 
nominate  Mr.  Webster  ;  but  I  doubt  if  the  nomination  would  be 
of  any  value,  for  I  think  the  Democrats  will  surely  carry  the  next 
election. 

My  brethren  here  have  received  me  very  kindly,  and  there  are 
some  pleasant  gentlemen  among  them.  I  find  my  duties  require 
constant  labor ;  but  there  is  no  more  than  a  fair  day's  work  to  be 
done  in  each  day,  and  I  have  really  more  leisure  than  I  have 
known  for  ten  years.  The  great  difference  between  my  pro 
fessional  labors  at  the  bar  and  on  the  bench  consists  in  the  entire 
freedom  of  the  latter  from  anxiety  and  burdensome  responsibility, 
and  the  certainty  when  I  rise  in  the  morning  that  no  one  can  force 
me  to  do  any  thing  which  I  am  not  equal  to  ;  and,  accordingly,  my 
health  has  been  better  during  the  last  month  than  any  time  for  a 
year  past.  We  have,  argued  and  now  under  advisement,  the  case 
of  the  Wheeling  Bridge,  built  across  the  Ohio  under  the  authority 
of  the  State  of  Virginia.  This  is  the  first  case  since  I  have  been 
here  which  involved  constitutional  questions  on  which  the  court  are 
likely  to  divide,  though  I  have  been  obliged  in  one  case  to  dissent 
from  the  majority.  In  general,  we  have  thus  far  been  very  har 
monious  in  our  opinions. 

The  court  was  riot  disturbed  by  the  fire,  and  sat  as  usual  while 
the  building  was  burning.  We  were  not  aware  that  we  were  show 
ing  any  peculiar  coolness  by  doing  so  ;  for  having  made  all  necessary 
arrangements  to  have  the  records,  &c.  removed  in  case  of  need, 
we  saw  no  reason  why  the  business  of  the  day  should  not  proceed. 
But  I  understand  people  thought  it  was  like  the  Senate  sitting 
when  the  Gauls  came.  Give  my  love  to  Aunt  and  the  cousins,  and 
believe  me 

Yours  faithfully,  B.  R.  CURTIS. 

The  subjoined  letter,  written  to  me  recently  while  this 
volume  is  passing  through  the  press,  is  from  the  pen  of  a 
gentleman  who  was  a  college  friend  of  my  brother's,  and 
who  was  in  confidential  relations  with  President  Fillmore 
at  the  time  when  he  appointed  the  latter  to  the  bench.  A 
part  of  it  relates  to  their  college  days;  but  as  it  was  not 
received  in  season  to  be  quoted  in  the  chapter  relating  to 
that  period,  the  whole  is  inserted  here. 


166  MEMOIR   OF  BENJAMIN  BOBBINS   CUBTIS.  [1852. 

202  MADISON  AVENUE,  NEW  YORK, 
March  22,  1879. 

MY  DEAR  MR.  CURTIS,  —  I  had  not  forgotten  my  promise,  but 
the  day  it  was  made  I  was  called  to  Lenox  on  business,  and  have 
but  just  returned. 

My  friendship  with  your  brother  was  a  matter  of  our  earlier 
and  our  later  days,  —  when  we  were  in  college  and  when  he  was  on 
the  bench  of  the  Supreme  Court.  He  preceded  me,  as  you  know, 
by  a  year,  at  Harvard,  at  a  time  when  a  year  or  two  makes  a  great 
difference  in  age,  and  I  looked  up  to  him  always  with  as  much  respect 
as  if  I  had  not  regarded  him  with  affection.  I  do  not  think  there  was 
ever  a  period  when  his  judgment  was  not  as  good,  on  such  facts  as 
were  submitted  to  it,  as  it  became  in  his  maturest  days.  Intellect 
ually,  he  had  no  boyhood.  He  was  a  man  from  the  start,  if  there 
ever  was  one.  I  was  frequently  at  his  rooms,  —  for  I  was  fasci 
nated  by  his  singular  sweetness  of  disposition,  and  his  kind,  genial 
way  of  making  me  at  home  with  my  "  senior,"  while  his  conver 
sation  was  full  of  interest  and  instruction  to  me.  In  expressing 
what  I  particularly  remember  of  his  character  in  those  days,  I 
should  say  that  it  was  nothing  if  not  judicial.  He  knew  that 
every  thing  has  two  sides,  and  he  looked  for  both  sides  of  every 
thing. 

There  was  a  long  interval  in  our  intercourse,  —  from  the  time 
he  graduated  till  we  met  again  more  than  twenty  years  after 
wards.  Meanwhile  he  had  risen  to  the  head  of  the  bar  of  New 
England. 

When  Mr.  Justice  Woodbury  died,  the  first  name  presented  to 
the  President  for  the  vacancy  thus  created  on  the  Supreme  Bench 
was  that  of  your  brother.  Mr.  Fillmore  determined  to  appoint 
him  ;  and  although  strong  interests  were  active  in  behalf  of  others, 
he  never,  I  think,  faltered  in  his  resolution.  On  his  visit  to  Boston, 
in  the  summer  of  1851,  he  assured  himself  that  his  intention  of 
appointing  a  young  man,  provided  he  was  the  best  man,  could  be 
best  carried  out  by  the  appointment  of  Mr.  B.  K.  Curtis ;  and  he 
offered  him  the  vacant  seat  solely  because  he  thought  it  his  duty  to 
do  so.  And  I  will  here  say,  in  parenthesis,  that,  if  there  ever  was 
a  magistrate  guided  in  every  action  by  a  stern  sense  of  public  duty, 
that  magistrate  was  Millard  Fillmore.  And  I  have  reason  to  know 
that  there  was  no  act  of  his  administration  in  which  he  felt  more 
pride  and  satisfaction  than  in  this  single  appointment. 


1852.1  JUDICIAL   LIFE   IN   WASHINGTON.  167 

When  your  brother  came  to  "Washington  as  Mr.  Justice  Curtis, 
we  again  fell  naturally  enough  into  our  old  relations,  and  slipped 
as  easily  into  "  John  "  and  "  Ben  "  as  if  we  had  just  come  from  a 
game  of  foot-ball  on  the  "  Delta."  It  was  a  relief  to  him,  after 
sitting  all  day  on  the  bench,  to  come  up  to  my  then  bachelor 
quarters  and  dine,  and  chat  over  a  glass  of  claret  into  the  small 
hours,  —  sometimes  in  company,  sometimes  alone.  At  those  times 
he  did  not  seem  to  be  a  day  older  than  when  he  was  in  college ;  — 
there  was  the  same  infinite  charm  of  simplicity,  naturalness,  and 
sincerity  that  distinguished  him  in  his  earlier  days.  He  never 
failed  to  give  due  credit  to  his  contemporaries.  It  was  in  their 
praise,  and  not  in  their  disparagement,  if  he  ever  went  beyond  his 
habitual  moderation  in  treating  of  men  and  things.  If  I  could 
trust  myself  to  speak  of  conversations  of  so  long  ago,  I  could  give 
many  instances  of  this ;  but  there  is  one  that  I  am  not  obliged  to 
trust  to  my  memory  for.  I  copy  from  a  pocket  diary,  that  has 
somehow  survived  the  accidents  of  a  quarter  of  a  century,  the 
following  entry,  being  that  note  taken  on  the  spot  which  is  truly 
said  to  be  worth  a  cart-load  of  recollections :  — 

"  Thursday,  Jan.  20,  1852.  ...  In  the  evening  Judge  Curtis,  Mr.  William 
Appleton,  Crittenden,  Conrad,  Burnley,  Rush,  Hamilton  Fish,  and  Dr.  Pyne 
dined  with  me.  Mr.  Webster  could  not  come,  but  sent  me  with  his  regrets 
a  fine  large  cod  that  he  had  just  received  from  a  friend  in  Boston,  which 
was,  of  course,  the  crack  dish  of  the  occasion,  and  we  did  not  forget  to  drink 
his  health  with  all  the  honors.  Judge  Curtis  impresses  every  body  most 
favorably  by  his  modest  demeanor  and  his  agreeable  conversation.  He 
changes  but  little,  —  he  is  of  the  same  well-knit  frame,  with  fine,  expressive 
eyes,  and  white  teeth,  which  you  notice  when  he  smiles,  —  not  handsome,  but 
his  face  .lights  up  wonderfully.  Crittenden,  who  does  not  like  or  dislike  by 
halves  is  perfectly  charmed  with  him;  and  Crittenden,  by  the  way,  was  in 
great  spirits  to-night,  and  told  some  of  his  Western  stories  in  his  very  best 
style.  They  turned  chiefly  on  his  early  professional  experiences  in  Ken 
tucky,  and,  the  conversation  taking  this  direction,  Judge  Curtis  bore  his  full 
share  in  it,  and  said,  among  other  things,  that  he  regarded  Charles  O'Conor's 
management  of  the  Forrest  Divorce  Case  as  the  most  remarkable  exhibition 
of  professional  skill  ever  witnessed  in  this  country." 

This  is  word  for  word  as  Judge  Curtis  uttered  it;  and,  coming 
from  such  a  source,  it  seems  to  me  a  tribute  of  which  even  Mr. 
O' Conor  might  be  proud. 

Yours  sincerely, 

JOHN  0.  SARGENT. 


168  MEMOIR   OF    BENJAMIN   BOBBINS   CUBTIS.  [1852. 

To  MR.  TICKNOR. 

WASHINGTON,  Feb.  29,  1852. 

DEAR  UNCLE,  —  I  have  no  claim  to  be  considered  a  correspond 
ent  of  any  one,  for  it  is  not  possible  for  me  to  be  such,  but  I  assure 
you  my  silence  does  not  imply  forgetfulness.  We  are  winding  up 
the  business  of  the  session,  and  shall  adjourn  on  Tuesday,  the 
2d  of  March,  till  the  first  Monday  in  April,  and  then  sit  for  two 
months.  I  voted  against  this  adjournment,  on  the  ground  that  the 
law  now  requires  us  to  go  the  circuit  at  least  once  a  year,  and  that 
in  two  of  my  districts  no  judge  of  the  Supreme  Court  will  have 
been  for  a  year.  But  I  was  outvoted,  and  must  submit,  and  cer 
tainly,  if  we  can  do  what  we  hope,  —  go  entirely  through  the  calen 
dar,  —  it  will  be  a  very  important  work.  We  shall  leave  no  cause 
undecided,  which  has  been  argued,  when  we  adjourn.  Judge 
Catron  will  give  the  opinion  of  the  court  in  Mrs.  Gaines's  case 
to-morrow,  against  Mrs.  Gaines.  In  this  opinion  I  unite  with 
Nelson  and  Grier.  Wayne  and  Daniel  dissent,  and  McLean  and 
the  Chief  Justice  did  not  sit,  on  account  of  an  interest,  in  some 
way,  in  the  result,  which  some  of  their  relatives  have. 

We  shall  undoubtedly  be  roundly  abused  by  newspapers  and 
pamphlets  for  tins  decision.  The  lady  has  talent  and  spirit,  and 
threatens  strongly,  I  hear.  .  .  . 

On  Tuesday,  I  shall  give  the  opinion  of  the  court  on  the  constitu 
tionality  of  the  State  Pilot  Laws.  There  is  involved  in  this  the 
much  vexed  question,  whether  the  power  to  legislate  on  commercial 
subjects  is  vested  exclusively  in  Congress,  or  whether  the  States  may 
legislate  in  the  absence  of  Congressional  regulations.  I  expect  my 
opinion  will  excite  surprise,  because  it  is  adverse  to  the  exclusive 
authority  of  Congress,  and  not  in  accordance  with  the  opinions  of 
McLean  and  Wayne,  who  are  the  most  high-toned  Federalists  on 
the  bench.  But  it  rests  on  grounds  perfectly  satisfactory  to  my 
self,  and  it  has  received  the  assent  of  five  judges  out  of  eight, 
although  for  twenty  years  no  majority  has  ever  rested  their  de 
cision  on  either  view  of  this  question,  nor  was  it  ever  directly 
decided  before. 

We  shall  leave  here  on  Wednesday  for  a  little  excursion  into 
Virginia,  as  far  as  Richmond,  and  thence  down  to  Norfolk,  and  so 
to  Baltimore  and  home  on  the  12th,  if  not  unexpectedly  delayed. 
I  hear  they  keep  some  warmer  weather  down  there,  and  want  to 
see  a  little  of  it  before  coming  back  to  ice  and  snow.  .  .  . 


1852.]  JUDICIAL  LIFE  IN   WASHINGTON.  169 

Presidential  politics  are  in  great  confusion  here,  and  no  one  can 
conjecture  who  is  to  be  nominated  by  any  party.  But  I  fear  Mr. 
Webster  has  no  chance  whatever  for  a  nomination.  I  will  tell  you 
my  reasons  when  I  see  you.  Please  give  my  love  to  Aunt  and  to 
the  cousins.  I  shall  be  extremely  glad  to  see  you  all,  which  I  hope 
to  do  in  a  fortnight. 

Yours  faithfully,  B.  R.  CURTIS. 

Of  the  opinions  pronounced  by  the  Supreme  Court,  at  this 
his  first  term  of  service,  numbering  in  all  one  hundred  and 
ninety-seven  cases,  it  was  assigned  to  Judge  Curtis  to  write 
ten.1  This  continued  to  be  about  the  average  number  of 
cases  in  which  he  wrote  the  opinion  of  the  court  in  the 
succeeding  terms,  from  the  December  Term,  1852,  to  the 
December  Term,  1856.2 

Of  the  discharge  of  his  duties  on  the  circuit,  a  sphere 
which  he  regarded,  as  the  reader  has  seen,  as  the  most 
difficult  and  useful  field  of  judicial  labor,  what  is  recorded 
is  contained  in  the  two  volumes  of  Circuit  Court  Reports 
which  bear  his  name.  Of  that  which  is  not  recorded,  and 
which  lives  as  yet  in  the  memories  of  survivors,  there  is  a 
beautiful,  and  I  think  just  description,  given  by  a  gentle 
man  who  practised  before  him  during  nearly  the  whole  of 
the  period  of  his  service  as  a  judge ;  and  this  I  cannot  omit 
transcribing  into  these  pages  :  — 

A  young  man,  coming  a  stranger  into  a  large  and  strong  bar 
like  this,  (as  I  did  in  the  year  1852,  when  Judge  Curtis  had  just 
gone  upon  the  bench,)  is  apt  to  be  deeply  impressed  by  the  marked 

1  As  there  were  nine  judges,  and  as  the  opinions  of  the  court  on  all 
questions  of  practice,  jurisdiction,  &c.  were  usually  written  by  the  Chief 
Justice,  —  of  which  character  there  were  at  this  term  twenty-eight  cases, 
—  the  number  of  the  other  cases  in  which  Judge  Curtis  wrote  the  opinion 
of  the  court  was  a  large  proportion  to  assign  to  the  youngest  judge,  who 
had  just  come  upon  the  bench.     The  average  share  of  the  work  for  each 
of  the  Associate  Justices  was  about  eighteen  cases.     But  of  course  the 
amount  of  this  part  of  the  labor  that  was   performed   by  the    different 
judges  varied  considerably. 

2  A  list  of  all  of  the  cases  in  the  Supreme  Court  in  which  he  delivered  the 
opinion  of  the  court  will  be  found  in  the  Appendix. 


170  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1852. 

manifestation  on  the  part  of  the  bench  of  certain  moral  qualities, 
which  others,  not  so  anxiously  situated,  might  take  for  granted; 
and  it  is  of  some  of  these  qualities,  very  conspicuous  in  Judge 
Curtis,  that  I  wish  to  speak. 

He  was  a  very  patient  judge.  I  suppose  he  thought  that  it  was 
as  much  a  judge's  duty  to  be  patient  as  it  was  to  be  learned,  and 
that  his  possession  of  much  learning  did  not  excuse  him  from  the 
obligation  of  patience  towards  those  who  had  less.  And  in  his 
case,  I  early  observed  that  whatever  encouragement  or  exhilaration 
a  young  advocate  might  miss  in  the  frigid  and  reserved  and  distant 
manner  which  was  maintained  by  the  bench,  was  more  than  made 
up  by  the  steadiness  conferred  upon  the  speaker  by  the  quiet  and 
courteous  attention  with  which  he  was  listened  to,  from  the  begin 
ning  to  the  end  of  what  he  had  to  say.  If  a  young  advocate 
happened  to  be  making  bad  work  of  it,  he  was  at  any  rate  not 
helped  downward  by  the  slightest  manifestation  of  weariness  or 
vexation  from  the  bench. 

lie  was  a  perfectly  impartial  judge.  If  we  are  to  speak  of  this 
trait  in  its  highest  aspect,  we  cannot  do  better  than  to  apply  to 
Judge  Curtis  the  language  which  he  himself  applied  to  another  dis 
tinguished  jurist  of  this  bench  (I  mean,  and  I  delight  in  this  brief 
opportunity  of  doing  him  honor,  Mr.  Justice  Sprague)  on  the  occa 
sion  of  his  retirement  from  judicial  life:  "The  bar  have  found  in 
you  that  absolute  judicial  impartiality  which  can  only  exist  where 
an  instructed  and  self-reliant  intellect  is  joined  to  a  tender  and 
vigilant  conscience  and  a  firm  will."  Not  a  word  can  be  spared 
from  this  definition.  It  was  all  true  of  Judge  Sprague.  It  was  all 
true  of  his  judicial  comrade,  Judge  Curtis.  We  may  assume  now 
that  all  judges  mean  to  be  impartial,  as  it  is  here  defined.  But 
it  is  riot  possible  that  all,  or  more  than  a  very  few,  should  have  an 
intellect  at  once  instructed  and  self-reliant,  and  a  conscience  at 
once  tender  and  vigilant,  as  well  as  a  firm  will ;  and  without  them 
all,  it  is  most  true  that  absolute  judicial  impartiality,  to  be  useful 
to  the  world  as  well  as  meritorious  in  its  possessor,  cannot  exist. 

He  was  an  absolutely  independent  judge,  —  independent  not 
only  in  conduct,  so  that  in  his  judicial  seat  he  neither  feared  nor 
favored  any  man,  but  by  natural  sentiment,  so  that  he  could  be  and 
was  single-minded,  having  no  ends  large  or  small  to  accomplish, 
outside  of  and  apart  from  the  great  end  of  doing  justice.  He  had  an 
ambition,  of  course,  to  command  the  respect  of  his  contemporaries, 


1852]  CONFLICTING   CRITICISMS.  171 

and  to  make  himself  a  lasting  reputation  as  a  wise  and  learned 
judge  ;  but  he  had  no  judicial  ambition  beyond  this.  How  he 
would  appear,  what  people  would  say,  how  his  or  any  body's  per 
sonal  feeling  would  be  affected  if  he  decided  thus  or  thus,  were 
thoughts  of  which  he  was  simply  incapable.  He  was  that  kind  of 
man  that  could  not  lower  himself  to  entertain  such  considerations. 
The  result  of  the  possession  and  steady  exercise  of  this  principle  or 
instinct  of  independence  was  to  make  the  administration  of  the 
law  in  his  court  profoundly  respected. 

Patient,  impartial,  independent,  —  possessing  these  three  qualities 
in  absolute  perfection,  he  might  have  been  much  less  able  and  much 
less  learned  than  he  was,  and  still  have  been  a  judge  whose  time 
we  could  look  back  upon  with  pride  and  gratitude.1 

Judge  Curtis  was  assailed  by  a  certain  class  of  persons 
for  restricting  the  right  of  trial  by  jury,  because  he  had  de 
nied  that  juries  are  rightfully  judges  of  the  law  in  criminal 
cases.  Within  a  year  he  was  abused  by  the  same  class  of 
persons  for  extending  the  right  of  trial  by  jury  beyond 
constitutional  bounds.  The  subject  on  which  the  last 
complaint  was  made  related  to  the  constitutional  validity 
of  a  law  of  Rhode  Island  for  "  the  suppression  of  drink- 
ing-houses  and  tippling-shops."  An  action,  of  replevin  was 
brought  in  the  Circuit  Court  of  the  United  States  for  Rhode 
Island,  by  a  citizen  of  New  York,  to  recover  possession  of  a 
quantity  of  wine  and  spirits.  The  defendants  justified  the 
taking  and  detention  by  virtue  of  certain  proceedings  under 
the  law.  The  plaintiff  having  demurred  to  the  avowry, 
insisted  that  the  provisions  of  the  law  relied  upon  were  in 
conflict  with  the  Constitution  of  the  State.  This  question 
Judge  Curtis  had  to  decide.  His  opinion,  very  carefully 
considered  and  written,  was,  when  promulgated,  severely 
and  rudely  assailed  in  the  New  York  Tribune.  The  fol 
lowing  letter  relates  to  this  matter.2 

1  Remarks  of  Mr.  Causten  Browne,  at  the  meeting  of  the  Boston  bar 
held  after  the  death  of  Judge  Curtis. 

2  Although    this  opinion    is   contained    in  the  first  volume  of  Curtis's 
Circuit  Court  Reports  (Greene  v.  Briyjs,  p.  311),  it  seems  to  me  so  valuable 


172  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1853. 

To  MR.  TICKNOR. 

WASHINGTON,  Jan.  14,  1853. 

DEAI*  UNCLE,  —  I  received  your  circular  respecting  the  corre 
spondence  of  Mr.  Webster.  I  have  no  letters,  myself,  of  any 
value  for  your  purpose,  but  may  gather  some.  Our  neighbor, 
Mrs.  Dr.  Lindsley,  is  a  relative  of  his  remotely,  and  has  many 
letters  from  him,  and  perhaps  may  consent  to  send  some.  I  know 
of  no  other  person  to  whom  I  can  apply,  but  by  inquiry  may  learn 
of  some,  to  use  a  clumsy  phrase. 

Mr.  C.  P.  Curtis  informs  me  you  were  somewhat  disturbed  by 
articles  in  the  Tribune  newspaper  concerning  my  decision  in  the 
matter  of  the  Rhode  Island  law  for  the  suppression  of  tippling- 
houses,  &c.  I  have  not  seen  the  articles  ;  but  I  had  no  doubt, 
when  the  opinion  was  given,  it  would  be  attacked,  not  by  reasoning, 
for  that  I  did  not  fear,  but  by  abuse,  which  I  feared  as  little.  It 
is  a  fact  of  some  significance,  as  illustrating  the  position  which  the 
judiciary  holds  in  this  country,  that  within  the  period  of  one  year  I 
have  been  abused  for  trenching  upon  the  right  of  trial  by  jury,  and 
for  extending  that  right  beyond  the  bounds  prescribed  by  the  Con 
stitution.  I  know  that  all  the  time  I  have  occupied  the  same 
ground,  now  repelling  those  who  would  make  the  jury  judges  of 
the  law,  which  would  be  destructive  of  liberty,  and  now  restraining 
those  who,  in  the  pursuit  of  an  object  deemed  by  them  of  great 
importance,  have  disregarded  principles  contained  in  Magna  Charta, 
and  affirmed  in  every  American  Constitution  which  has  been  formed 
since  177G.  Neither  Mr.  Greeley  nor  any  one  can  overthrow  the 
opinion  pronounced  in  this  case  ;  and  if  their  articles  can  even 
temporarily  influence  any  portion  of  the  public  mind,  it  is  only 
because  there  is  not  enough  knowledge  to  judge,  and  not  enough 
deference  to  suspend  their  opinions.  I  have  no  doubt  I  may  and 
shall  make  mistakes  in  my  judicial  opinions.  But  I  think  I  do 
know  when  I  have  got  down  on  to  the  primitive  foundations,  whose 
situs  will  never  be  disturbed  until  our  political  fabric  breaks  up  ; 
and  be  sure  this  opinion  rests  upon  them.  I  asked  Judges  Nelson 
arid  Grier  to  hear  the  opinion  read  before  it  was  sent  to  Rhode 

for  the  light  which  it  sheds  upon  constitutional  provisions  common  to  al 
most  every  American  State,  that  I  have  advised  its  insertion  infra,  Vol.  II., 
as  a  pendant  to  the  opinion  on  the  right  of  juries  to  judge  of  the  law  in 
criminal  cases. 


1854.]  FUGITIVE   SLAVE   TRIALS.  173 

Island,  —  I  also  stated  its  principles  to  the  Chief  Justice,  —  and  it 
met  the  approbation  of  each  of  them.  No  doubt,  the  members  of 
the  judiciary  department  of  the  government  must  make  up  their 
minds  to  being  treated  hereafter  by  the  press  with  very  little  defer 
ence,  and  with  no  more  fairness  than  other  people.  But,  for  one, 
I  am  content,  as  long  as  I  shall  administer  a  part  of  this  power,  to 
do  my  duty  to  the  best  of  my  ability,  and  let  the  country  take  care 
of  the  consequences.  It  is  more  their  affair  than  mine,  in  any  just 
way  of  viewing  it. 

We  are  going  to-day  to  dine  with  Mr.  Everett.  Anna  has  con 
tinued  to  grow  better  since  we  arrived  here,  and  is  now  getting 
quite  stout.  My  own  health  is  perfectly  good.  Please  give  my 
love  to  Aunt  and  the  cousins,  and  believe  me 

Always  your  affectionate  nephew,  B.  R.  CURTIS. 

The  judicial  duties  of  Judge  Curtis  in  his  own  circuit 
continued  for  some  time  longer  to  involve  trials  growing 
out  of  the  Fugitive  Slave  excitement.  In  May,  1854,  one 
Anthony  Burns,  a  fugitive  slave  from  Virginia,  was  arrested, 
and  examined  in  Boston  before  a  United  States  Com 
missioner,  upon  a  warrant  issued  under  the  act  of  Sep 
tember  18,  1850.  While  the  proceedings  in  this  man's 
case  were  pending,  a  public  meeting  was  held  in  Faneuil 
Hall,  on  the  evening  of  May  26th,  at  which  the  Rev.  Theo 
dore  Parker  and  Mr.  Wendell  Phillips  made  speeches,  in 
reference  to  this  matter,  of  an  inflammatory  character.  On 
the  same  night  an  attack  was  made  by  a  mob  upon  the  door 
of  the  Court-House,  in  which  the  Marshal  who  held  Burns 
under  the  Commissioner's  warrant  had  his  office ;  and  in 
resisting  this  attack,  one  of  the  Marshal's  officers  was 
stabbed  and  killed.1  On  the  7th  of  June  the  United  States 
grand-jury  of  the  District  were  in  attendance  on  the  Circuit 
Court.  It  belonged,  of  course,  to  the  State  authorities  to 
detect  and  punish  the  person  or  persons  who  had  committed 
the  murder ;  but  as  process  of  the  United  States  had  been 
resisted,  and  as  the  object  of  the  attack  was  avowedly  to 

1  The  perpetrator  of  this  deed  was  never  discovered. 


174  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1854. 

rescue  the  prisoner  held  by  the  Marshal,  it  became  the  duty 
of  Judge  Curtis  to  charge  the  grand-jury  in  regard  to  the 
offence  of  obstructing  the  execution  of  process  of  the  United 
States.  The  charge  which  he  delivered  is  reprinted  in  the 
second  volume  of  this  work.  The  grand-jury  to  which 
this  charge  was  delivered  found  no  bills  relating  to  this 
particular  offence  ;  but  upon  the  evidence  which  the  govern 
ment  laid  before  the  grand-jury  in  October,  1854,  tending 
to  show  that  the  persons  who  made  the  attack  on  the  Court- 
House  were  incited  to  that  act  by  the  speeches  to  which 
they  had  listened  in  Faneuil  Hall,  Messrs.  Parker,  Phillips, 
and  other  persons  were  indicted  for  a  misdemeanor,  under 
the  statute  on  which  the  former  grand -jury  had  been 
charged  by  the  court.  The  trials  had  not  come  on  when 
Judge  Curtis  went  to  Washington  to  attend  the  Supreme 
Court  in  December.  The  following  private  letters  make 
some  reference  to  the  continued  excitement  in  Boston 
during  the  winter  of  1854-55  :  — 

To  MR.  TICKNOR. 

WASHINGTON,  Dec.  20,  1854. 

MY  DEAR  UNCLE,  —  We  were  truly  sorry  to  hear  of  the  death 
of  Dr.  Parkman.1  We  knew  of  his  illness,  and  were  waiting  with 
much  interest  to  hear  of  the  progress  of  his  disease.  We  did  not 
suppose  he  was  in  great  danger.  Your  letter  gave  us  the  first 
information  of  his  death.  I  have  not  taken  in  a  Boston  news 
paper  this  winter.  I  thought  it  more  comfortable  to  leave  Massa 
chusetts  behind  me  for  three  months,  and  the  extract  you  sent  me 
from  a  newspaper,  containing  the  substance  of  Mr.  Hale's  lecture, 
is  the  first  thing  of  the  kind  I  have  seen  since  I  came  here.  .  .  . 

O 

Mr.  Hale  had  a  quarrel  of  a  violent  character  with  the  Supreme 
Court  of  New  Hampshire,  some  years  ago,  on  this  subject  of  the 
right  of  the  jury  to  judge  the  law.  He  was  entirely  worsted.  He 
renewed  the  contest  before  me  in  the  Circuit  Court  with  no  suc 
cess.  You  are  aware  that,  when  the  people  of  Massachusetts  voted 
on  their  proposed  Constitution,  the  majority  against  the  article 

1  Dr.  Samuel  Parkman,  married  to  a  niece  of  Mrs.  Ticknor. 


1854.]  JUDICIAL  FIRMNESS.  175 

making  jurors  the  judges  of  the  law  was  greater  than  on  any  other 
subject  submitted  to  them.  It  is  the  opinion  of  every  judge,  save 
one,  now  on  the  bench  of  this  court,  that,  under  the  Constitution 
of  the  United  States,  the  jurors  are  never  the  judges  of  the  law. 
I  say  save  one,  and  I  do  not  know  what  his  opinion  is. 

As  to  the  individual  and  factious  resistance  of  the  court  to 
which  Mr.  Hale  endeavors  to  excite  his  hearers,  I  have  no  appre 
hension  whatever.  If  one  or  two  sufficiently  wrong-headed  per 
sons  on  the  panel  should  refuse  to  answer  proper  questions,  good 
temper,  gentleness,  and  firmness  will  put  them  obviously  and  en 
tirely  in  the  wrong,  and  the  ample  power  of  the  court  to  compel 
obedience  to  its  lawful  commands,  will  reduce  them  to  submission. 
It  will  be  as  hopeless  for  them  to  attempt  to  gain  a  victory  in  this 
way,  as  for  Abby  Folsom  to  speak  at  an  abolition  meeting. 

I  suppose  great  efforts  are  making,  and  will  continue  to  be 
made,  to  preoccupy  the  public  mind  in  reference  to  the  trials  of 
Theodore  Parker  and  Wendell  Phillips.  This  is  no  affair  of  mine. 
My  duty  is  to  administer  the  law.  This  will  be  done.  Whether 
they  are  legally  guilty  of  the  charge,  whether  either  of  them 
ought  to  be  convicted,  whether  they  will  be  convicted,  are  matters 
respecting  which  I  have  no  responsibility  whatever,  and,  I  can  say 
with  perfect  truth,  no  wish  whatever  save  that  justice  should  be 
done.  But  I  desire  and  intend,  so  far  as  in  me  lies,  to  have  the 
law  administered  ;  if  they  are  not  guilty,  for  their  acquittal ;  if 
otherwise,  for  their  conviction  ;  and  I  think  it  will  be  done  with 
great  quietness  and  calmness,  and  I  believe 'with  the  same  steadiness 
in  their  cases  as  in  those  of  the  colored  men  who  are  accused  of  the 
same  offence. 

It  cannot  be  doubted  that  the  position  of  the  judges  of  the 
Supreme  Court,  at  this  time,  is  in  a  high  degree  onerous ;  and  that 
while  it  exposes  them  to  attack,  such  as  no  honest  judiciary,  in  any 
country  within  my  knowledge,  have  been  subject  to,  they  have  not 
the  consideration  and  support  to  which  they  are  entitled.  Their 
salaries  are  so  poor  that  not  one  judge  on  the  bench  can  live  upon 
what  the  government  pays  him,  and  the  legislative  branch  of  the 
government  are  not  friendly  to  them.  The  people,  though  retain 
ing  some  of  the  respect  which,  in  the  formation  of  the  govern 
ment,  made  the  judicial  element  predominant  over  every  thing  but 
the  reserved  power  of  the  people,  yet  are  ready  to  listen  without 
indignation  to  the  grossest  charges  against  those  who  administer 


176  MEMOIR    OF    BENJAMIN   BOBBINS    CUKTIS.  [1855. 

the  judicial  power.  I  believe  I  have  never  spoken  to  you  on  this 
subject ;  but  it  has  been  and  is  a  matter  of  grave  doubt  with  me, 
whether  I  will  longer  continue  to  occupy  the  post  I  now  hold.  I 
can  say  with  entire  sincerity,  that,  if  I  could  see  an  honorable  re 
treat  from  my  post  open  to  me,  from  which  the  country  would  take 
no  detriment,  I  would  not  hold  it  longer.  Whether  I  shall  con 
tinue  to  do  so,  I  do  not  now  know.  While  I  do  hold  it,  however, 
no  power  confided  to  me  by  the  people  of  the  United  States,  for 
the  benefit  of  themselves  and  their  posterity,  will  suffer  any  loss 
in  my  hands,  however  odious  its  exercise  may  be  to  a  faction,  or  a 
party,  or  even  to  my  native  State,  and  however  ill  supported  I  may 
be  by  all  other  men. 

I  certainly  had  not  intended  to  write  in  so  grave  a  tone  when  I 
began  this  letter.  But  I  have  been  insensibly  led  to  speak  of 
things  which  I  often  think  of. 

We  are  pretty  well,  though  Anna  has  not  been  quite  as  well 
as  usual  since  coming  here.  My  own  health  is  good.  Present  my 
love  to  Aunt  and  the  cousins,  and  believe  me 

Yours  affectionately,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

WASHINGTON,  Feb.  6,  1855. 

MY  DEAR  UNCLE,  —  I  send  herewith  a  note  to  Mr.  Lowell, 
which  I  suppose  is  what  you  suggest,  though  I  did  not  quite 
understand  from  your  letter  whether  you  desired  me  to  send  it 
to  you.  I  heartily  approve  of  his  employing  Mr.  Milburn  to 
give  the  proposed  course  of  lectures.  I  think  it  would  help  to 
enlarge  the  conceptions  of  our  fellow-citizens  in  Boston  to  listen 
to  them.1 

There  is  nothing  here  of  very  special  interest.  Congress  is 
working  pretty  hard  upon  the  public  business,  and  is  in  a  better 
mood  to  do  it  than  I  have  known  before.  The  passage  of  the 
French  Spoliation  Bill  is  creditable,  but  I  fear  the  President  will 
veto  it.  The  politics  of  parties  are  in  a  very  confused  state  just 
now.  There  are  a  few  old  Democrats  who  hold  on  to  their  tradi 
tions  ;  but  besides  these  almost  all  are  looking  over  their  shoulders 

1  The  Rev.  W.  H.  Milburn,  sometimes  called  "  the  blind  preacher/'  was 
employed  at  this  time  to  give  a  course  of  lectures  at  the  Lowell  Institute,  in 
Boston.  He  had  been  chaplain  to  one  of  the  houses  of  Congress. 


1855.]  JUDICIAL  IMPARTIALITY.  177 

on  both  sides  to  discern  from  what  quarter  the  breeze  is  coming. 
That  the  country  is  to  go  through  a  severe  trial,  and  its  institu 
tions  be  hardly  strained  during  the  next  few  years,  I  have  no  doubt. 
If  it  depended  on  the  virtue  and  wisdom  of  its  public  men,  I  should 
not  have  so  much  hope  as  fear.  But  the  frame  of  the  government 
is  so  good,  that  it  will  work  pretty  well  under  great  embarrass 
ments,  and  will  not  stop  without  being  first  subjected  to  very  vio 
lent  shocks.  These  I  do  not  much  fear. 

I  received  a  few  days  since,  from  Boston,  a  copy  of  an  article 
in  the  Advertiser,  for  the  kindness  of  which  towards  myself  I 
am  much  indebted  to  the  unknown  writer,  but  I  doubt  the  expe 
diency  of  opening  a  newspaper  discussion  upon  the  subject.  Per 
haps  I  am  not  so  well  able  to  judge  of  its  fitness  as  those  on  the 
spot.  I  can  say  with  entire  truth,  that  the  thing  which  I  most 
feel  in  all  these  matters  is,  that  an  audience  of  two  thousand 
people,  in  the  city  of  Boston,  should  tolerate  personal  abuse  of  a 
magistrate  from  a  man  who  stands  indicted  in  the  tribunal  over 
which  that  magistrate  presides,  and  that  they  should  applaud  one 
who  avows  himself  to  be  devoted  to  the  destruction  of  his  country. 
I  do  not  know  enough  of  the  geology  of  the  State  to  say  where  the 
hard-pan  lies ;  but  if  it  is  much  lower  down  than  this,  I  should 
have  some  doubt  of  the  power  of  that  people  to  extricate  them 
selves  from  the  mud  at  last. 

With  love  to  you  and  yours,  I  am 

Yours  always,  B.  R.  CURTIS. 

On  the  3d  of  April,  1855,  a  jury  was  impanelled  to  try 
one  of  these  indictments  in  the  Circuit  Court,  held  by  Judge 
Curtis  and  Judge  Sprague.  The  counsel  for  the  defendants 
made  a  motion  to  quash  the  indictment,  on  various  techni 
cal  grounds,  which  were  elaborately  argued.  When  the 
counsel  for  the  government  had  argued  in  support  of  the 
indictment,  and  the  leading  counsel  for  the  defence  was 
about  to  reply,  he  was  stopped  by  the  court,  and  informed 
that  they  did  not  deem  it  necessary  to  hear  him.  Judge 
Curtis  then  said  that  there  was  a  fatal  defect  in  the  indict 
ment,  which  had  not  been  pointed  out  at  the  bar,  but  which 
had  arrested  the  attention  of  the  court.  He  said  that 

VOL.    I.  12 


178  MEMOIR   OF   BENJAMIN  BOBBINS   CUKTIS.  [1856. 

the  indictment  did  not  contain  a  sufficient  legal  averment 
that  the  Commissioner  who  issued  the  warrant  was  a  Com 
missioner  duly  authorized  to  issue  process  under  the  act 
of  1850  ;  and  that,  although  such  was  undoubtedly  the 
fact,  the  want  of  such  an  averment  in  the  indictment  was 
fatal.  In  the  case  that  was  then  on  trial  (that  of  one 
Stowell),  the  indictment  was  thereupon  quashed.  In  the 
other  cases,  including  those  of  Messrs.  Parker  and  Phillips, 
in  which  the  indictments  had  the  same  defect,  the  District 
Attorney  was  allowed  to  enter  a  nolle  prosequi.1 

Two  of  the  following  letters,  written  from  Washington 
in  1856,  relate  to  the  best  mode  of  filling  one  of  the 
departments  of  the  Boston  Public  Library,  which  Mr. 
Ticknor  was  then  busily  occupied  in  enlarging,  and  in 
reference  to  which  he  went  abroad  in  the  following  sum 
mer.2  The  third  letter  refers  only  to  a  matter  of  domestic 
interest. 


1  The  Rev.  Theodore  Parker,  whose  case  was  never  presented  to  a  jury, 
thought  fit  to  publish  in  a  book  a  supposititious  and  imaginary  speech,  which 
he  said  he  had  intended  to  address  to  the  jury  on  his  trial.     It  filled  221 
pages  of  an  octavo  volume  with  the  most  atrocious  personal  attacks  upon 
the  judge,  who  would  have  presided  at  the  trial,  if  there  had  been  one. 
In  his  Preface  he  said,  "  Of  course,  I  knew  that  the  court  would  not  have 
allowed  me  to  proceed  with  such  a  defence,  and  that  I  should  be  obliged  to 
deliver  it  through  the  press."     In  this  he  was  doubtless  quite  right.     But  he 
did  not  "  deliver  "  this  "  defence  through  the  press  "  until  the  following 
August.     He  then  published  one  of  the  foulest  libels  that  ever  emanated 
from  the  press,  under  the  form  of  an  intended  speech  to  a  jury,  that  was 
never  impanelled  for  the  trial  of  his  case,  and  directed  that  libel  against  a 
judge  whose  legal  acumen  had  saved  him  from  a  trial,  which  might,  if  it 
had  taken  place,  have  been  followed  by  his  conviction.     He  did  a  worse 
thing  than  this  ;  for  in  his  Preface  he  attributed  his  escape  from  a  trial 
to   his   counsel,  who,  he  said,  "  rent  the  indictment   into  many  pieces,  — 
apparently  to  the  great  comfort  of  the  judges,  who  thus  escaped  the  battle, 
which  then  fell  only  on  the  head  of  the  [District]  Attorney."     The  indict 
ment  was  quashed  on  an  error  detected  and  pointed  out  by  the  court,  and 
which  had  not  been  seen  or  referred  to  by  the  counsel  for  the  defence. 
Mr.  Parker  knew  this,  of  course,  just  as  well  as  it  was  known  to  every  one 
present. 

2  See  "  Life  and  Letters  of  George  Ticknor,"  vol.  ii.  p.  310,  et  seq. 


1856-1  BOSTON  PUBLIC   LIBRARY.  179 

To  MR.  TiCKNOR. 

WASHINGTON,  Jan.  24,  1856. 

MY  DEAR  UNCLE,  —  It  will  give  me  great  pleasure  to  comply 
with  your  request  to  give  the  list  of  books  on  the  commercial  law 
which  you  ask,  but  it  is  not  the  work  of  an  hour,  and  I  must  take 
a  little  time  for  it.  I  have  no  hesitation  about  English  or  Ameri 
can  books,  or  translations  from  the  languages  of  Europe,  or  from 
the  Latin.  The  only  doubt  is,  how  far  it  is  expedient  to  include 
French  books  on  commercial  law.  The  Code  de  Commerce 
now  in  force,  with  its  most  important  commentators,  —  the  great 
Ordinance  of  Louis  XIV.,  and  Valin's  Commentary  and  his  edit 
ors,  —  I  should  not  hesitate  a  moment  about.  French  speculations, 
as  the  common  lawyers  call  them,  —  for  we  have  never  really  be 
lieved  that  French  commerce  afforded  exactly  a  practical  field  for 
commercial  law,  —  are  VERY  valuable.  Their  writers  have  done 
more  to  give  symmetry  to  the  dry  bones  of  our  "  cases,"  than  one 
would  readily  believe  who  had  not  studied  them.  The  knowledge 
of  French  is  so  common  among  merchants  now,  that,  apart  from 
technical  terms,  which  do  not  abound  in  their  books  on  this  branch 
of  the  law,  an  intelligent  man  who  reads  the  language  would 
understand  Valin  or  Boulay  Paty/as  readily  as  Phillips  or  Arnold. 
If  I  were  to  follow  my  own  lights,  therefore,  I  would  put  in  the 
library,  alongside  of  a  collection  of  the  English  and  American  Re 
ports  touching  the  admiralty  and  commercial  law,  and  the  English 
and  American  text-writers  on  these  subjects,  a  choice  collection  of 
French  books.  Please  say  if  this  is  within  your  plan,  and  I  will, 
as  soon  as  possible,  give  my  attention  to  it. 

I  have  been  entirely  well  this  winter,  and,  though  I  do  not  be 
come  reconciled  to  living  in  a  small  room,  away  from  my  wife  and 
children,  I  bear  it  as  well  as  I  can.  Give  my  love  to  Aunt,  and 
tell  her  I  try  to  behave  well  in  my  solitary  state. 

Ever  yours,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

WASHINGTON,  Tuesday,  April  8,  1856. 

MY  DEAR  UNCLE,  —  I  hope  you  will  not  consider  me  remiss  in 
attention  to  the  list  of  French  law-books.  I  went  to  work  with 
Dupin  as  soon  as  I  arrived  here,  but  I  was  dissatisfied  with  what  I 
had  done,  and  asked  Judge  Campbell  and  Mr.  Benjamin  of  the 


180  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1856. 

Senate  (who  is  an  accomplished  Louisiana  lawyer)  to  help  me.1 
They  readily  agreed  to  do  so ;  but  they  are  both  very  much  occu 
pied,  and  I  cannot  urge  them  to  hasten  the  work.  If  you  are 
desirous  of  having  my  imperfect  results,  I  will  send  them  ;  but  if 
you  can  wait  a  week  or  two,  I  can  do  better  by  their  aid. 

The  spring  is  steadily  advancing  here,  and  green  grasses  and 
early  flowers  are  no  longer  rare. 

The  court  will  not  decide  the  question  of  the  Missouri  Compro 
mise  line,  —  a  majority  of  the  judges  being  of  opinion  that  it  is  not 
necessary  to  do  so.2  (This  is  confidential.)  The  one  engrossing 
subject,  in  both  houses  of  Congress  and  with  all  the  members,  is 
the  Presidency ;  and  upon  this  every  thing  done  and  omitted,  ex 
cept  the  most  ordinary  necessities  of  the  country,  depends.  Judge 
McLean  hopes,  I  think,  to  be  a  candidate  for  the  office.  He  would 
be  a  good  President,  but  I  am  not  willing  to  have  a  judge  in  that 
most  trying  position  of  being  a  candidate  for  this  great  office. 

Please  present  my  affectionate  remembrances  to  your  household, 
and  believe  me, 

Ever  yours,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

[WASHINGTON,]  May  5,  1856. 

MY  DEAR  UNCLE,  —  I  thank  you  for  your  note  of  the  3d 
instant,  which  I  received  this  morning.  I  shall  certainly  be  present 
on  the  20th.  if  my  health  does  not  require  me  to  remain  at  home, 
and  I  hope  and  believe  it  will  not.  But  I  have  been  much  run 
down  by  continuous  labor,  and  have  suffered  somewhat  from  living, 
away  from  home,  the  life  of  a  wanderer  since  last  September.  I 
shall  leave  here  on  Tuesday  the  13th,  if  I  get  through  with  my 
share  of  the  work,  as  I  anticipate.  I  shall  go  to  Pittsfield,  and 
unless  I  should  be  more  under  the  weather  than  I  expect,  shall 
come  down  on  Monday.  I  have  no  court  to  bring  me  to  Boston, 
for  I  do  not  now  suppose  I  shall  hold  a  court  till  next  September, 
but  I  cannot  stay  away  from  an  occasion  which  is  so  interesting  to 
you,  and  therefore  to  me.8  Whether  my  wife  will  be  able  to  come, 

1  The  Hon.  J.  P.  Benjamin,  afterwards  the  "  Confederate  "  Secretary  of 
"War,  and  now  an  eminent  barrister  in  London,  is  the  person  here  referred  to. 

2  See  infra,  Chapter  VIII.,  in  regard  to  the  Dred  Scott  case. 

3  The  marriage  of  Mr.  Ticknor's  youngest  daughter,  Eliza  Sullivan,  to 
Mr.  William  S.  Dexter. 


1856.]  RETURN  FROM  WASHINGTON.  181 

I  know  not.  She  has  just  got  her  flock  safely  housed  at  Pitts- 
field  ;  I  should  not  be  surprised  if  she  felt  unable  to  quit  the 
homestead  and  make  another  journey.  But  she  must  speak  for 
herself. 

I  take  it  for  granted  that  your  house  will  not  hold  me  in  this 
emergency,  and  shall  look  for  a  home  elsewhere,  unless  you  say  I 
am  to  come  to  your  house,  and  I  do  not  expect  you  to  do  so.  With 
much  love  to  you  and  yours,  I  am 

Ever  yours,  B.  R.  CURTIS. 


182  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1851 


CHAPTER  VII. 

1851-1856. 

Purchase  of  an  Estate  at  Pittsfield.  —  Country  Life.  —  Interest  in  Farming. 
—  Letters  to  Mr.  Ticknor.  —  Projects  and  executes  his  Edition  of  the 
Supreme  Court  Decisions. 

WHILE  the  current  of  human  life,  for  those  who  feel 
strongly  and  think  wisely  concerning  public  affairs,  flows 
among  dangers  and  trials,  it  also  flows,  for  those  who  are 
blest  in  their  domestic  ties,  in  enjoyments  which  public 
occupations  can  neither  give  nor  take  away.  He  whose 
enlightened  patriotism  makes  him  anxious  about  the  pub 
lic  welfare  finds  in  his  private  relations  and  interests  the 
relief  which  brings  cheerfulness,  and  the  happiness  which 
the  outer  world  rarely  disturbs.  My  brother  was  of  a 
temperament  that  made  domestic  life  most  necessary  to 
him ;  and  he  had  the  wisdom,  as  soon  as  his  means  would 
allow,  to  surround  himself  with  the  appliances  which  could 


1852.]  COUNTRY  LIFE.  183 

gratify  the  tastes  and  minister  to  the  wants  of  his  nature. 
These  were  always  simple,  and  such  as  belong  to  a  healthy 
moral  organization  and  a  cultivated  intellect. 

Always  a  lover  of  nature,  and  with  strong  tastes  for 
agriculture,  which  he  had  imbibed  in  his  boyhood,  he  had 
never,  until  the  year  1851,  owned  any  land  on  which  such 
tastes  could  be  indulged.  Previous  to  that  time,  his  sum 
mers  had  for  several  years  been  passed  at  the  sea-shore, 
in  a  cottage  which  he  built  at  Lynn,  opposite  Nahant.  In 
the  summer  of  1851,  he  passed  with  his  family  a  couple  of 
months  in  Pittsfield,  amid  the  beautiful  scenery  and  in  the 
invigorating  air  of  the  Berkshire  hills  and  valleys.  He  was 
now  so  much  attracted  by  an  estate  of  three  hundred  acres, 
near  the  village  of  Pittsfield,  that  he  became  its  owner,  and 
made  preparations  to  build  upon  it  a  handsome  country  res 
idence.  Occupied  with  these  plans,  he  had  no  expectation 
and  no  wish  but  to  resume  in  the  autumn  his  usual  employ 
ments  at  the  bar.  The  steady  income  which  he  derived 
from  them  was  as  large  as  that  of  any  other  lawyer  in 
New  England  who  practised  as  an  advocate.  Without  going 
into  details,  it  is  enough  to  say,  that,  with  his  facilities  for 
meeting  the  most  important  demands  of  his  profession,  he 
was  in  the  way  of  making  for  himself  a  very  good  fortune. 
At  this  time,  however,  his  accumulations  had  been  but 
moderate.  He  had  lived  liberally,  because  his  social  posi 
tion  made  it  proper,  and  his  numerous  family  rendered  it 
necessary  that  he  should  do  so.  But  he  had  never  lived 
extravagantly  or  ostentatiously.  He  was  not  rich  enough  to 
quit  the  bar,  at  the  age  of  forty-two,  for  any  public  position 
in  which  the  compensation  would  be  very  much  less  than 
the  emoluments  which  he  could  earn  as  a  lawyer. 

His  house  in  Pittsfield  was  completed  in  the  spring  of 
1852,  and  was  first  occupied  during  that  summer.  It  was 
placed  on  a  gentle  elevation,  with  an  ample  lawn  in  front 
and  a  noble  wood  behind  it.  Without,  a  large  farm,  which 
he  was  capable  of  managing  skilfully,  gave  him  an  interest- 


184  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1852. 

ing  and  healthful  occupation.  He  was  a  much  better 
farmer  than  amateurs  generally  are.  He  knew  how  to 
make  good  crops  and  to  fatten  marketable  beeves  with 
out  undue  cost,  although  he  was  not  such  a  cultivator  as 
Burke,  whose  farming  was  a  somewhat  marvellous  exer 
cise  of  agricultural  skill  in  one  whose  habitual  pursuits 
were  those  of  a  statesman.1 

It  has  been  observed  of  Judge  Curtis,  that  in  the  prac 
tice  and  the  administration  of  the  law,  in  its  application 
to  the  various  mechanical,  commercial,  or  maritime  objects 
with  which  courts  of  justice  have  to  deal,  he  possessed  a 
practical  sagacity  and  facility  which  one  might  suppose 
was  derived  from  an  experience  in  the  workshop,  or  in  the 
counting-house,  or  upon  the  quarter-deck.2  It  was  very 
much  the  same  with  his  knowledge  of  agriculture.  It  was 
a  pursuit  to  which  he  seemed  to  take,  naturally  and  easily, 
from  the  time  when  he  first  acquired  the  farm  which  for 
a  period  of  eighteen  years  was  to  him  and  his  family  a 
summer  home. of  great  happiness.  In  his  boyhood,  as  I 
have  elsewhere  observed,  he  had  seen  a  good  deal  of  prac 
tical  farming,  on  lands  of  one  of  his  maternal  uncles. 
Great  improvements  had  of  course  been  made  in  the  period 
which  elapsed  between  that  time  and  his  purchase  of  this 
Pittsfield  property.  But  he  appeared,  when  he  began  farm- 

1  Among  the  published  correspondence  of  Burke,  his  letters  to  Arthur 
Young,  the  celebrated  author  of  the  Farmers'  Calendar,  and  the  best  in 
formed  agricultural  writer  of  his  time,  evince  the  most  remarkable  practical 
knowledge  of  farming  possessed  by  any  statesman  with  whose  annals  I  am 
acquainted,  excepting  our  own  Webster.     The  editors  of  that  correspond 
ence  say,  that  "  farming,  with  him,  could  hardly  be  called  a  relaxation ;  for 
he  entered  into  the  business  with  all  the  eagerness,  and  with  more  than  the 
usual  information,  of  those  who  practise  it  for  a  maintenance."     (Corre 
spondence  of  Edmund  Burke,  edited  by  Lord  Fitzwilliam  and  Sir  Richard 
Burke,  London,  1844,  vol.  i.  p.  245.)     The  same  was  true  of  Mr.  Webster, 
with  this  difference,  —  that  he  sunk  a  great  deal  of  money  in  improving 
very  poor  land  to  the  highest  state  of  cultivation,  whereas  Burke's  estate 
at  Beaconsfield  was  apparently  much  better  land  than  Webster's  at  Marsh- 
field,  and  was  managed  with  far  greater  economy. 

2  Remarks  of  Elias  Merwin,  Esq.,  at  the  meeting  of  the  Boston  Bar  held 
after  the  death  of  Judge  Curtis. 


1851.]  LETTERS   TO   MR.   TICKNOR.  185 

ing,  to  understand  the  art  in  its  improved  condition,  al 
though  he  had  been  for  five  and  twenty  years  engaged 
exclusively  in  the  study  and  practice  of  the  law. 

An  anecdote,  in  which  those  who  knew  him  will  recog 
nize  a  trait  of  his  character,  belongs  to  this  period.  Soon 
after  the  completion  of  his  Pittsfield  house,  a  mechanic  in 
that  neighborhood  sold  to  him  a  patented  gate,  which  was 
to  open  by  some  contrivance  operated  upon  by  the  wheels 
of  the  carriage  as  they  approached  the  gateway.  The  gate 
was  erected  and  paid  for,  but  it  proved  in  a  little  while 
to  be  a  complete  failure.  Judge  Curtis  brought  an  action 
against  the  maker  for  the  money  paid,  and,  after  a  trial,  he 
recovered  a  verdict  for  the  price  of  the  gate  and  the  costs. 
Judgment  w^as  entered  ;  but  learning  that  the  defendant 
was  a  man  who  could  ill  afford  to  pay  the  money,  he  directed 
his  lawyer  to  remit  the  whole  claim,  and  paid  the  costs 
himself. 

To  MR.  TICKNOR. 

July  27, 1851. 

DEAR  UNCLE,  —  The  enclosed  letter  will  explain  itself.  It  is 
not  in  my  power  to  comply  with  William's  request,  and,  as  he  de 
sires,  I  send  it  to  you.  The  reason  why  I  cannot  is,  that  I  have 
bought  "  the  farm,"  and  this  makes  such  a  demand  on  my  resources 
as  to  leave  me  no  means  at  present  to  serve  my  friends.  Anna 
went  with  me  to  Pittsfield,  and,  after  duly  considering  the  whole 
matter,  I  made  an  offer,  which  was  accepted,  and  I  am  going  there 
again  to-morrow  to  close  the  bargain.  I  have  just  returned  from 
Newport,  where,  after  a  trial  of  eight  days'  duration,  I  find  that  I 
have  some  strength  left.  In  short,  I  am  much  better,  but  not  so 
well  as  to  be  in  any  danger  of  forgetting  the  lesson  which  I  have 
received,  and  I  hope  I  shall  not  neglect  the  warning  which  a  kind 
Providence  has  given  me  in  season  this  time,  if  I  will  take  it.  My 
arrangements  with  Mr.  C.  P.  Curtis  are  concluded,  and  on  the 
1st  of  October  I  begin  anew  with  Mr.  Merwin,  from  the  county  of 
Berkshire,  as  my  partner  arid  assistant. 

We  are  all  well.  Mother  has  been  with  us  some  weeks,  and 
will  spend  the  rest  of  the  summer  here.  Love  to  Aunt  and  the 
cousins. 

Yours  always,  B.  R.  CURTIS. 


186  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1852. 

The  new  business  arrangement  spoken  of  in  this  letter 
was  of  course  superseded  by  his  appointment  to  the  bench, 
in  the  following  autumn,  of  which  an  account  has  already 
been  given.  The  letters  which  follow  in  this  chapter  were, 
as  their  dates  indicate,  written  after  that  event. 

To  MR.  TICKNOR. 

PITTSFIELD,  July  13,  1852. 

MY  DEAR  UNCLE,  —  I  learn  that  you  will  be  on  the  move  west 
ward  about  the  1st  of  August.  Can  you  not  take  Pittsfield  in  your 
way,  either  out  or  home.  We  can  find  room  for  you  and  all  yours, 
and  shall  be  most  happy  to  have  a  visit  from  you  for  as  many  days 
as  you  can  allow  us.  Pray  do  not  say  no,  if  you  can  find  it  con 
venient  and  agreeable  to  say  yes ;  for  it  will  give  both  Anna  and 
myself  great  pleasure  to  show  you  our  house,  to  which  we  are 
becoming  more  and  more  attached.  The  country  is  extremely 
beautiful,  and,  to  one  whose  eye  is  no  quicker  than  mine,  gains  con 
stantly  on  my  apprehension  of  its  fine  points.  The  farm  amuses 
and  interests  me,  and,  considering  the  amount  of  its  produce  we 
consume,  is  a  cheap  luxury ;  and  the  freedom  with  which  we  live 
here,  far  enough  away  from  the  town  to  be  entirely  independent  of 
its  requisitions,  is  very  charming  to  one  who  likes  his  own  ways  as 
well  as  I  do.  I  confess  to  no  want  except  talk,  and  I  have  not 
been  long  enough  without  that  to  suffer  yet. 

I  do  not  allow  myself  to  be  disturbed  by  the  state  of  public 
affairs.  If  I  were  disposed  to  be  so,  there  are  certainly  many 
causes.  Indeed,  when  I  look  steadily  at  the  condition  of  things, 
not  in  New  England  merely,  but  over  the  whole  country,  I  find 
nothing  to  rely  on  for  our  future  security  and  peace  but  the  honest 
instincts  of  the  mass  of  the  people.  In  them,  I  would  include  those 
whose  education  and  ability  have  elevated  them  above  the  average 
intelligence  of  the  country,  provided  they  are  not  politicians,  or 
members  of  the  third  estate  ;  but  I  firmly  believe  that  if  the  country 
for  five  years  were  to  be  effectively  governed  by  politicians  and 
editors,  helped  by  speculative  men  of  education  and  talent,  it  would 
be  ruined  beyond  hope  of  redemption.  So  far,  I  am  a  democrat, 
though  not  likely  to  profess  publicly  so  shocking  a  creed.  In  the 
mean  time,  I  go  on  quietly  with  my  legal  studies,  and  do  not  seri 
ously  fear  that  what  I  may  learn  of  the  Constitution  and  of  the 


1855.]  LETTERS   TO  MR.  TICKNOR.  1ST 

jurisprudence  of  the  United  States  will  become  useless  in  my  day. 
The  articles  which  George  has  written  lately  seem  to  me  very 
forcible  and  very  important.  When  he  has  published  his  work 
on  the  Constitution,  I  think  there  will  be  no  man  living  in  New 
England  who  will  have  done  so  much  to  preserve  it.  He  may  not 
find  his  exertions  or  his  character  appreciated  now  or  soon ;  but  the 
time  will  come  when  they  will  be,  and  he  is  young,  and  can  wait. 

Please  present  Anna's  and  my  love  to  Aunt,  and  say  we  hope  she 
will  be  inclined  to  the  visit,  which  will  give  us  so  much  pleasure. 
Yours  always, 

B.  R.  CURTIS. 

P.  S.  Since  writing  the  above,  I  learn  you  are  now  at  Lake 
George.  I  had  previously  heard  you  were  not  to  leave  Boston  till 
the  1st  of  August.  But  I  will  not  change  what  I  have  written,  as 
it  is  equally  applicable  to  your  return  as  to  your  exodus. 

B.  R.  C. 

To  MR.  TICKNOR. 

PITTSFIELD,  July  19,  1855. 

MY  DEAR  UNCLE,  —  My  letter  must  have  passed  yours  on  the 
road.  I  have  now  only  to  add,  that  I  shall  be  happy  to  accompany 
you  over  the  hills  of  Berkshire  while  you  are  here.  But  I  think 
I  keep  the  best  tavern  in  the  county,  and  that  in  general  it  will 
be  most  comfortable  and  quite  practicable  to  spend  the  nights  here. 
When  you  are  in  Boston,  please  ask  one  of  the  Rogers  brothers 
for  a  copy  of  a  pamphlet  they  published  about  a  curious  train  of 
boulders  in  this  county,  and  we  will  go  and  see  it. 

Walter l  is  preparing  for  admission  to  college.  .  .  .  My  anxiety 
to  have  strengthened  a  constitution  not  promising  well  in  his 
childhood  and  early  youth,  has  not  been  favorable  to  the  acqui 
sition  of  much  Latin  and  Greek.  His  health  is  now  good,  and  he 
has  great  power  of  application.  I  think  he  will  go  in  at  the  time 
mentioned,  without  much  difficulty. 

Greenough  and  I  have  given  up  our  Canada  excursion ;  he  be 
cause  of  his  engagements  in  Boston,  I  because  of  my  book,  which  is 
going  very  rapidly  through  the  press,  and  needs  my  constant  care.. 

Will  you   please   present   my  respectful   remembrance   to    Sir 

1  His  eldest  surviving  son.  An  elder  son,  Charles  Deming,  and  a 
daughter,  Clara,  died  in  Boston  in  1842. 


188  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1855. 

Edmund,  and  thank  him  for  his  request  that  I  should  see  him.     I 
certainly  should  have  waited  on  him  if  I  had  come  to  Canada.1 
Give  my  love  to  Aunt  and  the  young  ladies,  and  believe  me 
Yours  always, 

B.  R.  CURTIS. 

The  work  to  which  reference  is  made  in  these  letters  was 
his  edition  of  "  Decisions  in  the  Supreme  Court  of  the 
United  States,"  begun  in  1853  and  completed  in  1856. 
Nearly  the  whole  of  the  labor  of  this  undertaking  was  per 
formed  at  his  country  home.  He  projected  it  when  he  had 
had  two  years'  experience  on  the  bench. 

The  decisions  of  the  Supreme  Court  had  hitherto  been 
embraced  in  fifty-seven  volumes  by  five  different  reporters, 
Dallas,  Cranch,  Wheaton,  Peters,  and  Howard.  In  many  of 
the  reports,  the  statements  of  the  cases  were  encumbered 
with  unnecessary  copies  of  the  pleadings,  or  with  a  sum 
mary  of  the  facts  which  were  sufficiently  described  in  the 
opinions  of  the  judges.  Some  of  the  reporters  had  given 
very  good  abstracts  of  the  arguments  of  the  counsel,  while 
others  had  done  but  imperfect  justice  to  the  discussions  at 
the  bar ;  and  in  many  cases  no  attempt  had  been  made  by 
the  reporter  to  exhibit  the  views  presented  by  the  advo 
cates.  In  this  as  well  as  in  other  particulars  Mr.  Wheaton 
was  probably  the  best  reporter  that  had  filled  the  office. 
But  it  was  more  or  less  true  of  all  these  reports,  that  the 
head-notes,  or  what  is  sometimes  called  the  syllabus  of  the 
cases,  did  not  give  an  entirely  exact  and  properly  limited 
statement  of  the  points  decided  by  the  court.  No  good  and 
uniform  model  of  reporting  had  been  adopted  and  followed, 
from  the  first  sitting  of  the  court  under  the  Constitution 
down  to  the  time  when  Judge  Curtis  undertook  to  condense 
the  whole  of  the  previous  decisions  into  a  smaller  number 
of  volumes.  It  was  a  matter  of  considerable  nicety  to 
determine  the  limits  within  which  he  could  move  in  effect- 

1  Sir  Edmund  Head  was  at  this  time  Governor-General  of  Canada. 


1855.]  CONDENSED   DECISIONS.  189 

ing  this  object.  The  decision  of  the  court  in  the  case  of 
Wheaton  v.  Peters  had  settled  the  point  that  the  official 
reporter  could  not  claim  a  copyright  in  the  written  opinions 
of  the  judges.1  But  this  decision  did  not  extend  to  the 
statements  of  the  cases  that  might  have  been  written  by 
the  reporter,  or  to  his  compilations  of  the  arguments  of 
counsel,  or  to  his  head-notes ;  and,  upon  the  general  princi 
ples  of  the  law  of  copyright,  whatever  was  the  original 
composition  of  the  reporter,  in  the  sense  of  originality 
which  the  law  attributes  to  productions  of  this  nature, 
might  be  made  the  subject  of  a  valid  copyright.  Judge 
Curtis  did  not  think  it  needful  to  inquire  how  accurately 
the  necessary  steps  might  have  been  in  fact  taken,  by  any 
of  the  reporters,  to  secure  a  copyright  in  any  part  of  the 
matter  of  their  respective  reports.  It  was  enough  for  him 
that  those  gentlemen  or  their  assignees  might  have  legal 
rights  in  some  part  of  their  reports ;  and  as  his  plan  con 
templated  the  composition  of  head-notes  of  his  own,  he 
could  go  forward  freely  in  the  use  of  the  opinions  of  the 
judges,  which  had  been  declared  by  the  court  to  be  publici 
juris.  Upon  this  basis,  he  proceeded  to  make  a  new  edi 
tion  of  the  Decisions  of  the  Supreme  Court. 

The  preparation  and  publication  of  this  great  work,  in 
cluding  in  the  twenty-second  volume  a  digest  of  all  the 
cases,  occupied  him  during  his  vacations  and  at  his  country 
home  until  the  latter  part  of  the  year  1856.  What  a 
benefit  to  him  this  close  study  of  the  whole  jurisprudence 
of  the  United  States,  as  embraced  in  the  decisions  of  the 
Supreme  Court,  must  have  been,  the  professional  reader  can 
easily  understand.  It  is  quite  unnecessary  for  me  to  speak 
of  the  manner  in  which  he  performed  this  labor,  for  the 
profession  and  the  public  have  stamped  a  value  upon  the 

1  This  litigation  grew  out  of  an  undertaking  by  Mr.  Peters  to  make  con 
densed  reports  of  the  former  decisions,  including  those  reported  by  his  im 
mediate  predecessor,  Mr.  Wheaton,  and  by  Cranch  and  Dallas.  See  the 
case  of  Wheaton  v.  Peters,  8  Peters's  Rep.  591. 


190  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1855. 

work  to  which  no  comments  of  mine  can  add  any  thing.  I 
believe  it  is  generally  allowed  that  his  head-notes  are  mod 
els  of  terse,  accurate,  and  discriminating  statement  of  the 
points  decided  in  the  cases,  and  more  useful  than  any  simi 
lar  preceding  performances.  The  general  plan  of  the  work 
has  been  thought  to  be  so  nearly  faultless,  that  it  has  been 
followed  by  a  distinguished  judge  now  on  the  same  bench, 
in  a  series  of  volumes  embracing  some  decisions  of  the  Court 
subsequent  to  those  contained  in  the  work  of  Judge  Curtis. 
While  the  seventh  volume  of  his  "  Decisions  "  was  passing 
through  the  press,  he  felt  it  to  be  proper  to  apprise  the  pro 
fession  that  he  had  not  reprinted  the  reports  of  Mr.  Peters 
and  Mr.  Howard.  The  following  note  relates  to  a  notice 
which  he  inserted  in  that  volume :  — 

To  MR.  TICKNOR. 

SUNDAY,  A.M. 

MY  DEAR  UNCLE,  —  No  foreign  letter  came  for  you, — only  one 
from  home  which  I  did  not  send  back,  and  you  will  receive  it  at 
the  same  time  as  this.  Walter  writes  that  he  is  nearly  six  hours 
in  going  to  and  from  West  Roxbury  to  Cambridge  and  reciting 
there.  This  is  too  much  time  to  use  for  those  purposes,  and  I  have 
directed  him  to  come  and  see  if  you  can  take  care  of  him  for  three 
weeks  till  Mr.  Curtis  comes  to  town.  If  you  can  do  so  without 
inconvenience,  I  should  be  very  glad  to  have  him  with  you.  I  had 
intended  while  you  were  here  to  ask  your  advice  about  a  Notice 
to  be  published  in  the  next  volume  of  my  book.  I  have  sent  it  to 
George,  and  stated  the  necessary  facts  to  him,  and  will  ask  him  to 
show  it  to  you.  I  feel  very  anxious  to  do  justice  to  the  reporters 
of  the  court,  and  to  claim  for  myself  nothing  which  is,  even  in  the 
least  degree,  doubtful. 

Yours  always,  B.  R.  CURTIS. 

The  Notice  was  as  follows :  — 

NOTICE. 

THE  preceding  volumes,  together  with  the  first  418  pages  of  this 
volume,  include  all  the  cases  decided  by  the  Supreme  Court  of  the 


1855.J  CONDENSED   DECISIONS.  191 

United  States,  and  reported  by  Mr.  Dallas,  Judge  Cranch,  and  Mr. 
Wheaton.  Where  it  seemed  to  me  that  their  reports  of  cases  could 
not  be  usefully  condensed,  they  are  reprinted.  I  have  not  thought 
it  necessary  to  indicate,  in  the  preceding  volumes,  what  has  been 
taken,  without  alteration,  from  those  reporters.  I  do  not  know 
how  it  could  have  been  done  without  confusion,  the  alterations  hav 
ing  been  so  numerous  and  extensive.  I  trust  this  general  acknowl 
edgment  will  be  deemed  sufficient ;  and  that  it  will  be  understood, 
that,  as  respects  these  reporters,  to  whom  the  profession  and  the 
public  are  under  great  obligations,  I  have  only  revised  and  con 
densed  their  works.  The  reports  made  by  Mr.  Peters  and  Mr. 
Howard  are  not  reprinted.  So  far  as  they  are  the  subject  of  an 
existing  copyright,  I  had  no  right  to  reprint  them.  I  have,  there 
fore,  made  head-notes  to  all  the  cases  during  the  times  of  their 
reports,  and,  where  I  have  deemed  it  needful,  stated  the  facts  of 
each  case.  It  may  be  that  I  should  have  adopted  their  reports  of 
many  cases  without  change,  if  I  had  felt  at  liberty  to  do  so.  And 
it  is  due  to  them  that  I  should  state  why  I  have  not  considered 
whether  I  should  do  so. 

B.  R.  CURTIS. 
PITTSFIELD,  September  1,  1855. 


192  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857. 


CHAPTER   VIII. 

1857. 

Last  Attendance  as  a  Member  of  the  Supreme  Court. — Foreshadowing  of 
Sectional  Conflicts.  —  The  Case  of  Dred  Scott.  —  Fatal  Errors  of  the 
Majority  of  the  Bench.  —  Dissenting  Opinion.  —  Correspondence  with 
Chief  Justice  Taney. 

THE  term  of  the  Supreme  Court  commencing  in  Decem 
ber,  1856,  and  ending  in  March,  1857,  was  the  last  that 
Judge  Curtis  attended  as  a  member  of  that  body.  The 
following  letter,  written  to  his  uncle,  Mr.  Ticknor,  then  in 
Europe,  gives  some  notices  of  his  views  of  public  affairs  at 
that  moment,  and  of  the  condition  of  the  Court :  — 

To  MR.  TICKNOR. 

WASHINGTON,  Feb.  27,  1857. 

MY  DEAR  SIR, —  When  I  parted  from  you  eight  months  since, 
you  told  me  you  did  not  intend  to  carry  on  a  correspondence  with 
any  one,  hut  should  be  glad  to  bear  from  me.  I  like  to  write  so 
little,  and  am  obliged  to  write  so  much,  that  I  do  no  justice  with  my 
pen  to  my  interest  in  friends  who  are  absent.  If  I  had  written  to 
you  as  often  as  I  have  thought  of  you,  my  letters  would  have  been 
frequent  enough.  I  have  only  pleasant  accounts  to  give  of  those 
most  nearly  connected  with  me.  My  wife  and  the  three  youngest 
children  have  spent  the  winter  here.  .  .  .  Though  it  has  been  a 
very  severe  winter,  and  many  diseases  epidemic,  all  of  us  have 
been  well,  and  my  own  health  quite  undeviating.  As  to  public 
affairs,  you  know  Mr.  Buchanan  is  to  be  our  next  President.  His 
Cabinet  is  settled,  with  the  exception  of  the  Postmaster-General. 
It  consists  of  General  Cass,  as  Secretary  of  State,  whom  you  know ; 
Mr.  Howell  Cobb  of  Georgia,  who  did  good  service  by  the  side  of 


1857.]      FORESHADOWING   OF    SECTIONAL   CONFLICTS.        193 

Mr.  Webster  in  1850,  and  is  a  sagacious  and  conservative  man, 
Secretary  of  the  Treasury  ;  Mr.  Toucey  of  Connecticut,  Attorney- 
General,  —  an  excellent  lawyer,  and  a  person  of  rather  uncommon 
breadth  for  a  Connecticut  man ;  Mr.  Thompson  of  Mississippi, 
whom  I  do  not  know,  Secretary  of  the  Interior  ;  Mr.  Brown  of 
Tennessee,  Secretary  of  the  Navy.  —  Judge  Catron  thinks  well  of 
him  ;  Mr.  Floyd  of  Virginia  (lately  the  Governor),  Secretary 
of  War,  —  of  him  I  have  only  a  vague  knowledge  ;  and  the  Post 
master-General  is  not  yet  publicly  designated.  I  think  the  Cabinet 
as  good  as  the  country  could  expect.  It  is  no  doubt  composed  of 
conservative  and  cautious  men  ;  but  I  fear  it  will  not  command  the 
confidence  of  the  North  for  any  long  time.  And  I  still  more  fear 
that  Mr.  Buchanan  has  before  him,  both  as  to  his  foreign  policy 
and  his  domestic  affairs,  but  a  stormy  and  violent  administration. 
The  Democratic  party  is  greatly  divided  concerning  Cuba,  arid  the 
foreign  policy  of  the  United  States.  The  North  is  now  quiet,  after 
a  sectional  excitement  such  as  was  never  before  known  ;  but  I  am 
greatly  mistaken  if  events  do  not  rouse  it  again  to  an  exertion  to 
overthrow  what  is  called  "  the  slave-power,"  even  greater  than  that 
recently  made.  ...  I  do  not  expect  the  incoming  administration 
to  expire  without  affording  that  seeming  occasion  [for  making  a  sec 
tional  party  at  the  North].  The  great  fact  of  such  a  misfortune  is, 
that  the  wisest  and  best  men  cannot  belong  to  a  party  whose  suc 
cess  is  so  dangerous  ;  and  consequently  its  management  and  meas 
ures  must  fall  into  such  hands  as  now  hold  the  political  power  in 
all  the  New  England  States.  But  I  will  not  weary  you  with  evil 
prognostications.  I  would  have  said  nothing  of  public  affairs,  if  I 
did  not  suppose  you  would  expect  to  hear  from  me  concerning 
them  ;  and,  if  I  said  any  thing,  I  must  give  my  honest  impressions, 
which  I  admit  are  not  very  cheering. 

We  return  to  Pittsfield  next  week,  being  prevented  from  a  visit 
at  Boston  by  the  prevalence  there  of  scarlet-fever,  within  whose 
precincts  we  are  not  willing  to  take  our  children.  The  term  here 
has  been  very  laborious  to  those  judges  able  to  work.  Our  aged 
Chief  Justice,  who  will  be  eighty  years  old  in  a  few  days,  and  who 
grows  more  feeble  in  body,  but  retains  his  alacrity  and  force  of 
mind  wonderfully,  is  not  able  to  write  much.  Judge  Wayne  has 
been  ill  much  of  the  winter.  Poor  Judge  Daniel  has  been  pros 
trated  for  months  by  what  was  a  sufficient  cause  ;  for  his  young 
and  interesting  wife  was  burned  to  death  by  her  clothes  acciden- 
VOL.  i.  13 


194  MEMOIR    OF   BENJAMIN   HOBBINS    CURTIS.  [1857. 

tally  taking  fire,  almost  in  his  presence.  So  that  the  rest  of  us 
have  been  kept  at  the  oar,  as  Judge  Story  used  to  say,  "  double 
tides."  I  know  probably  less  of  Boston  even  than  you  do,  for  the 
last  four  months.  I  got  so  tired  of  Massachusetts  opinions  and  action 
on  all  public  affairs,  before  I  came  here,  that  I  have  scarcely  de 
sired  to  see  a  Boston  newspaper ;  and  beyond  family  letters,  which 
Mrs.  Curtis  gets,  and  my  correspondence  with  a  very  few  persons 
there,  I  am  not  in  a  way  to  learn  news  of  any  kind  from  thence. 
George  passed  two  months  here,  and  argued  the  question  of  the 
power  of  Congress  to  prohibit  slavery  in  the  Territories,  in  the 
case  of  Dred  Scott,  before  the  Supreme  Court,  in  a  manner  ex 
ceedingly  creditable  to  himself  and  to  the  bar  of  New  England. 
Judge  Catron  told  me  it  was  the  best  argument  on  a  question  of 
constitutional  law  he  had  heard  in  the  court,  —  and  he  has  been  here 
since  General  Jackson's  time.  Please  give  my  love  to  Aunt  and 

O  »/ 

Cousin  Anna.  I  think  of  them  very  often,  and  hope  I  may  see 
them  again  before  many  months.  My  wife  desires  her  affectionate 
remembrances  to  them  and  to  yourself. 

Ever  yours,  B.  R.   CURTIS. 

As  Mr.  Ticknor  observed  in  his  answer,  dated  at  Flor 
ence  on  the  12th  of  May,  this  letter  was  written  "  not 
without  thought  of  the  coming  shadow  of  the  decision  of 
the  Supreme  Court  of  the  United  States  in  Dred  Scott's 
case."  l  It  was  in  fact  written,  as  its  date  shows,  within  a 
little  more  than  a  week  previous  to  the  promulgation  by 
the  judges  of  their  respective  views  in  that  too  celebrated 
case.  The  opinion  of  the  Chief  Justice,  which  was  offi 
cially  treated  as  the  opinion  of  the  court,  had  been  previ 
ously  read  in  a  conference  of  the  court,  in  the  hearing  of 
the  other  judges,  as  it  was  afterwards  read  publicly  in  court 
on  Friday,  the  6th  of  March,  1857.  The  opinions  of  the 
other  judges  were  read  in  court  on  Saturday,  the  7th  of 
March,  and  on  that  day  the  court  was  adjourned  for  the 
term.  As  there  has  never  been  a  full  and  accurate  account 
given  of  the  part  taken  in  this  case  by  Judge  Curtis,  as  his 
action  has  sometimes  been  misunderstood,  and  as  he  ex- 

1  Life  and  Letters  of  George  Ticknor,  vol.  ii.  p.  402. 


1857.]  DEED    SCOTT   CASE.  195 

pressed  in  liis  last  illness  a  sense  that  some  injustice  had 
been  done  to  him  in  connection  with  this  case,  which  he 
expected  those  who  were  to  come  after  him  to  repair,  I 
think  proper  to  give  a  circumstantial  account  of  the  whole 
matter. 

I  approach  this  part  of  my  subject  with  unfeigned  reluc 
tance,  but  with  a  firm  conviction  that  I  have  a  duty  to  per 
form  to  both  private  and  public  history  which  I  ought  not 
to  avoid.  The  course  of  a  majority  of  the  judges  in  this 
case  of  Dred  Scott  precipitated  the  action  of  causes  which 
produced  our  civil  war,  and  which  would  otherwise  have 
lain  dormant  until  the  period  of  danger  to  the  Union,  aris 
ing  out  of  the  existence  of  slavery,  had  passed  by.  If, 
without  such  an  excitement  as  was  occasioned  by  what  was 
claimed  to  have  been  the  u  decision  "  of  the  Supreme  Court 
on  the  subject  of  slavery  in  the  Territories,  we  could  have 
gained  ten  years  more  in  the  growth  of  the  North  and  in 
the  peaceful  development  of  the  power  of  the  Federal  gov 
ernment  within  the  just  limits  of  the  Constitution,  South 
ern  secession  would  never  have  been  attempted.  On  the 
one  hand,  without  the  stimulus  afforded  by  this  "  decision,"  l 
there  would  have  been  no  adequate  cause  for  the  formation 
in  the  Northern  States  of  a  geographical  party,  with  pro 
fessed  efforts  aimed  at  the  supposed  predominance  of  the 
"  slave-power  "  in  the  councils  of  the  nation.  On  the  other 
hand,  without  the  new  and  unnecessary  stimulus  of  this 
supposed  "  decision,"  Southern  feeling  in  regard  to  the  im 
portance  of  a  theoretical  right  to  carry  slaves  into  the 
Territories  must  have  died  a  natural  death.  It  could  not 
have  risen  to  a  sense  of  danger  to  their  equality  in  the 
Union,  merely  because  the  people  of  the  North  were  un- 

1  I  am  obliged,  for  convenience,  to  speak  of  the  action  of  a  majority  of  the 
judges  in  this  case  as  a  "  decision,"  although,  as  will  be  seen  hereafter,  there 
never  was  a  judicial  majority,  speaking  correctly,  formed  upon  the  question  of 
the  power  of  Congress  to  prohibit  slavery  in  a  Territory,  and  consequently 
the  claim  that  a  " decision"  adverse  to  that  power  had  been  made  by  the 
Supreme  Court  was  erroneous. 


196  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

willing  to  see  the  area  of  slavery  extended  through  the 
Territories.  It  was  the  factitious  importance  given  to  the 
supposed  constitutional  right  of  such  extension,  by  the  ven 
erable  persons  composing  the  majority  of  the  Supreme 
Court,  that  awakened  anew  a  jealousy  which  had  already 
subsided  under  the  tranquillizing  influences  of  the  great 
settlement  made  seven  years  before.  The  so-called  "  Com 
promise  Measures  of  1850 "  had  wisely  avoided  the  de 
termination  of  the  theoretical  question,  by  the  legislative 
department,  for  any  of  the  new  Territories ;  and  they  had 
tacitly  assumed  that  the  Missouri  settlement  of  1820  —  by 
which  that  State  had  been  admitted  into  the  Union  as  a 
slave  State,  while  slavery  was  excluded  by  agreement  from 
all  the  Louisiana  purchase  north  of  the  parallel  of  36°  30' 
—  would  remain  undisturbed.  The  subsequent  repeal  of 
the  latter  part  of  that  settlement,  which  took  place  during 
the  administration  of  President  Pierce,  would  not  have  led 
to  a  sectional  conflict  dangerous  to  the  Union,  if  it  had  not 
been  followed,  before  Mr.  Buchanan's  administration  was 
fairly  in  the  exercise  of  power,  by  declarations  of  opinion  on 
the  part  of  a  majority  of  the  judges  of  the  Supreme  Court, 
that  the  Missouri  restriction  was  unconstitutional,  —  decla 
rations  made  under  circumstances  which  caused  a  general 
belief  throughout  the  North  that  they  had  been  made  from 
political  motives. 

For  a  period  of  nearly  seventy  years,  the  Supreme  Court 
of  the  United  States  had  been  looked  to  as  the  final  arbiter 
on  constitutional  questions,  with  a  confidence  such  as  has 
not  been  reposed,  on  so  great  a  scale  and  upon  such  impor 
tant  subjects,  in  any  other  human  tribunal  in  which  the 
powers  of  a  great  government  have  been  subjected  to  the 
forms  of  judicature,  —  if  indeed  there  has  been  any  other 
tribunal  of  parallel  functions  known  in  history.  Nobly 
had  that  confidence  been  earned,  and  well  had  it  been 
deserved.  It  constituted  one  of  the  dearest  treasures  of 
this  nation.  Wise  men  felt  that  its  loss  would  be  as  great 


1857.]  DEED   SCOTT   CASE.  197 

a  public  calamity  as  war,  pestilence,  or  famine.  The  rav 
ages  of  these,  time  might  repair.  But  what  could  repair 
the  injury  that  would  be  inflicted  on  the  people  of  this 
country  by  the  first  well-grounded  distrust  of  a  tribunal 
from  which  their  fathers  expected,  and  they  had  experi 
enced,  such  freedom  from  party  bias,  such  elevation  above 
the  political  passions  of  the  day  ?  That  distrust,  that  first 
fatal  loss  of  confidence  in  the  high  chamber  of  justice,  now 
came  to  a  large  part  of  the  people  in  one  entire  section  of 
the  Union.  It  came  because  the  belief  that  part}7  spirit 
had  taken  possession  of  the  court,  in  the  interest  of  slavery, 
even  if  it  was  erroneous,  had  too  much  to  support  it  in  what 
the  public  could  see  of  the  action  of  the  judges.  This  was 
the  first  time,  on  any  subject  affecting  the  welfare  of  the 
whole  Union,  that  such  a  belief  concerning  the  court  had 
seriously  taken  hold  of  the  public  conviction  in  any  part  of 
the  country  ;  and  this  conviction  sunk  deeply  into  the  minds 
of  men  who  struggled  hard  to  exclude  it,  and  who  were  pained 
beyond  expression  that  they  could  not  reject  it. 

This  was  a  consequence  which  the  judges,  who  concurred 
in  declarations  of  opinion  that  slavery  could  go  as  a  constitu 
tional  right  into  any  Territory  of  the  United  States  against 
a  Congressional  prohibition,  should  have  had  the  wisdom  to 
foresee  and  to  prevent.  They  should  have  taken  the  utmost 
care,  by  the  formation  of  a  majority  concurring  accurately 
upon  the  effect  of  every  part  of  the  record,  to  make  a  real 
decision,  —  one  that  would  be  a  judicial  determination,  be 
cause  consistent  in  all  its  reasoning  and  consistent  with  the 
requirements  of  the  case.  If  such  a  majority  could  not  be 
formed,  —  and  it  never  was  so  formed  that  the  constitu 
tional  question  relating  to  slavery  in  the  Territories  could 
be  legitimately  reached  by  five  or  more  out  of  the  nine 
judges,  —  the  case  should  have  been  disposed  of  quite  oth 
erwise  than  as  it  was.  But  an  opinion  written,  read,  and 
promulgated  by  the  Chief  Justice  as  the  opinion  of  the 
court,  followed  by  a  separate  opinion  of  each  judge  who 


198  MEMOIR   OF   BENJAMIN   ROBBINS   CURTIS.  [1857. 

concurred  with  him  in  the  main  result,  but  differing  upon 
the  grounds  on  which  each  thought  himself  entitled  to  act 
upon  the  constitutional  question,  left  their  declarations  of 
opinion  upon  it  in  the  category  of  obiter  dicta,1  and  left  the 
general  public  to  believe  that  there  was  something  wrong 
in  the  whole  internal  history  of  the  case.  Thus  a  great 
misfortune  befell  the  Supreme  Court  of  the  United  States,  — 
a  misfortune  for  which  the  people  should  not  be  blamed, 
because  it  was  not  solely  by  the  arts  of  demagogues  or  poli 
ticians  that  their  confidence  in  the  court  was  impaired. 
That  confidence  was  impaired  in  the  minds  of  men  whom 
no  arts  of  the  demagogue  or  the  politician  could  reach.  A 
vast  majority  of  the  legal  profession  throughout  the  whole 
North,  and  some  of  the  best  legal  minds  in  the  South,  alike 
rejected  the  supposed  decision  and  were  alike  dissatisfied. 

The  facts  in  this  case,  as  they  appeared  on  the  record, 
were  these.  Scott,  a  negro  of  African  descent,  brought 
an  action  in  the  Circuit  Court  of  the  United  States  for  the 
District  of  Missouri,  to  establish  the  freedom  of  himself, 
his  wife,  and  their  two  children.  As  was  necessary,  in 
order  to  obtain  the  jurisdiction  of  the  court,  he  described 
himself,  plaintiff  in  the  case,  as  a  citizen  of  the  State  of 
Missouri ;  and  the  defendant,  the  administrator  of  his  re 
puted  master,  as  a  citizen  of  the  State  of  New  York.  The 

1  The  general  reader  will  understand  that  this  legal  phrase  describes  the 
expression,  by  judges,  of  opinions  that  are  not  called  for  by  the  record,  or 
which  cannot  be  expressed  consistently  with  the  views  that  they  take  of  the 
technical  attitude  of  the  case  before  them,  in  respect  to  some  principal  ques 
tion.  Thus,  one  judge  may  hold  that  the  principal  question  is  not  brought 
before  him,  in  consequence  of  the  state  of  the  pleadings;  while  another 
judge  may  hold  that  the  pleadings  are  so  shaped  that  he  is  judicially  obliged 
to  act  upon  the  principal  question.  If  the  former  expresses  opinions  upon 
the  principal  question,  they  are  not  judicial,  but  they  are  extra- judicial,  or 
obiter,  tilings  said  by  the  way.  If  the  latter  expresses  opinions  upon  the 
principal  question,  they  are  judicial,  because  it  was  his  duty  to  form  and  to 
express  them,  according  to  his  view  of  the  requirements  of  the  record.  This 
distinction,  quite  important  in  the  administration  of  justice,  and  not  the  less 
important  when  constitutional  questions  are  involved,  it  will  be  seen  here 
after,  has  a  marked  application  to  the  opinions  of  the  different  judges  in  the 
case  of  Dred  Scott. 


1857.]  DEED    SCOTT   CASE. 

defendant  interposed  a  plea  to  the  jurisdiction, 
the  plaintiff  was  not  a  citizen  of  Missouri,  because  he  was  a 
negro  of  African  descent,  whose  ancestors  were  of  pure 
African  blood,  and  were  brought  into  this  country  and  sold 
as  slaves.  To  this  plea  there  was  a  general  demurrer, 
which  was  sustained  by  the  court ;  and  the  defendant  was 
ordered  "  to  answer  over,"  which  meant  that  he  must  plead 
to  the  merits  of  the  action.  The  defendant  then  pleaded  in 
bar  of  the  action,  that  the  plaintiff  and  his  wife  and  children 
were  negro  slaves,  the  property  of  the  defendant.  At  the 
trial  of  this  issue  before  the  jury,  the  only  evidence  intro 
duced  was  a  statement  of  facts  signed  by  the  parties,  in 
substance  as  follows  :  — 

In  1834,  Dred  Scott  was  a  negro  slave  belonging  to  Dr. 
Emerson,  a  surgeon  in  the  army  of  the  United  States.  In  that 
year,  Dr.  Emerson  took  the  plaintiff  from  the  State  of  Missouri  to 
the  military  post  at  Rock  Island,  in  the  State  of  Illinois,  and  held 
him  there  as  a  slave  until  1836.  Dr.  Emerson  then  removed  the 
plaintiff  to  the  military  post  at  Fort  Snelling,  in  the  territory  of 
the  United  States  north  of  36°  30',  and  north  of  the  State  of 
Missouri,  where  he  held  the  plaintiff  as  a  slave  until  1838. 

In  1835,  Harriet,  who  was  the  negro  slave  of  Major  Taliaferro, 
an  officer  of  the  army,  was  taken  by  her  master  to  Fort  Snelling, 
where  she  was  held  as  a  slave  until  1836,  when  she  was  sold  to  Dr. 
Emerson,  who  held  her  as  a  slave  at  Fort  Snelling  until  1838. 
In  1836,  the  plaintiff  and  Harriet,  with  the  consent  of  Dr. 
Emerson,  intermarried  at  Fort  Snelling.  Eliza  and  Lizzie  are 
children  of  that  marriage.  Eliza  was  born  on  board  a  steamboat, 
on  the  river  Mississippi,  north  of  the  north  line  of  the  State  of 
Missouri  ;  Lizzy  was  born  in  the  State  of  Missouri,  at  Jefferson 
Barracks,  a  military  post.  In  1838,  Dr.  Emerson  removed  the 
plaintiff  and  his  wife  and  children  to  the  State  of  Missouri,  where 
they  have  ever  since  resided.  Before  the  commencement  of  this 
suit.  Dr.  Emerson  sold  and  conveyed  the  plaintiff  and  his  wife  and 
children  to  the  defendant,  as  slaves,  and  the  defendant  has  ever 
since  claimed  to  hold  them,  and  each  of  them,  as  slaves. 

It  is  agreed  that  Dred  Scott  brought  suit  for  his  freedom  in  the 
Circuit  Court  of  St.  Louis  County ;  that  there  was  a  verdict  and 


200  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

judgment  in  his  favor ;  that  on  a  writ  of  error  to  the  Supreme 
Court  [of  the  State],  the  judgment  below  was  reversed,  and  the 
same  remanded  to  the  Circuit  Court  [of  the  State],  where  it  has 
been  continued  to  await  the  decision  of  this  case  [in  the  Circuit 
Court  of  the  United  States]. 

At  the  trial,  the  jury,  under  an  instruction  from  the  court  that 
upon  the  facts  of  the  case  the  law  was  with  the  defendant,  found  a 
verdict  that  the  plaintiff,  his  wife  and  children,  were  negro  slaves, 
the  lawful  property  of  the  defendant.  Upon  this  verdict,  the 
court  gave  judgment  for  the  defendant,  and  the  plaintiff  filed 
exceptions  to  the  instructions  of  the  court,  and  upon  these  excep 
tions  the  case  came  up,  by  writ  of  error,  to  the  Supreme  Court  of 
the  United  States. 

When  the  record,  thus  made  up,  reached  the  Supreme 
Court  of  the  United  States,  it  presented  two  principal 
questions  :  — 

First,  whether  Scott,  by  reason  of  his  African  descent 
from  ancestors  who  were  imported  into  this  country  and 
sold  as  slaves,  independent  of  the  question  of  his  personal 
freedom,  could  or  could  not  be  a  "  citizen  "  of  one  of  the 
States  of  this  Union? 

Second,  whether  Scott,  who  wTas  formerly  a  slave  in  the 
State  of  Missouri,  having  been  taken  by  his  master  into  a 
free  State  (Illinois),  and  thence  into  a  part  of  the  Louisi 
ana  purchase  north  of  the  parallel  of  86°  30',  where  sla 
very  was  prohibited  by  an  act  of  Congress  known  as  the 
Missouri  Compromise  Act,  and  then  brought  back  to  the 
State  of  Missouri,  was  in  legal  effect  emancipated  by  resi 
dence  with  his  master  in  a  free  State  or  a  free  Territory, 
so  that  the  condition  of  servitude  would  not  reattach  to  him 
on  his  return  into  Missouri  ? 

The  first  of  these  questions  arose  under  the  plea  to  the 
jurisdiction  of  the  Circuit  Court.  If  it  should  be  decided 
by  the  Supreme  Court  that  Scott  was  not  a  "  citizen,"  by 
reason  of  his  African  descent,  the  only  thing  that  could  be 
done  would  be  to  direct  the  Circuit  Court  to  dismiss  the 
case  for  want  of  jurisdiction,  without  looking  to  the  ques- 


1857.]  DEED   SCOTT   CASE.  201 

tions  raised  by  the  plea  to  the  merits.  But  if  the  Supreme 
Court  should  decide  that  he  was  a  u  citizen,"  notwithstand 
ing  his  African  descent,  then  the  questions  raised  by  the 
plea  to  the  merits,  relating  to  his  personal  status  as  affected 
by  his  residence  in  a  free  Territory  and  his  return  to  Mis 
souri,  would  have  to  be  acted  upon.  One  of  these  ques 
tions,  relating  to  his  personal  status  and  that  of  his  wife 
and  children,  involved  the  constitutional  power  of  Congress 
to  prohibit  slavery  in  a  part  of  the  Louisiana  Territory 
which  was  purchased  by  the  United  States  from  France. 
Still  another  question  involved  the  effect  to  be  given  to  a 
residence  in  the  free  State  of  Illinois,  and  a  subsequent 
return  into  Missouri.  The  Supreme  Court  of  the  State  of 
Missouri  had  held  Scott  to  be  still  a  slave,  upon  the  broad 
ground  that  no  law  of  any  other  State  or  Territory  could 
operate  in  Missouri  upon  his  personal  status,  even  if  he  did 
become  a  permanent  inhabitant  of  such  other  State  or 
Territory. 

It  will  be  apparent  to  the  professional  reader,  that  the 
judges  of  the  Supreme  Court  of  the  United  States,  who 
held  that  Scott,  even  if  a  freeman,  could  not  be  a  "  citizen  " 
of  Missouri,  should,  in  judicial  consistency,  have  expressed 
no  opinions  upon  the  questions  arising  on  the  merits  of  his 
action,  but  that  they  should,  if  they  were  a  majority,  have 
ordered  the  case  to  be  dismissed  for  want  of  jurisdiction. 
But  the  manner  in  which  the  constitutional  question  re 
specting  the  power  of  Congress  to  prohibit  slavery  in  terri 
tory  of  the  United  States  was  reached  and  acted  upon  by  a 
majority  of  the  judges,  requires  other  explanations. 

The  court  at  this  time  consisted  of  Chief  Justice  Taney 
and  Justices  McLean,  Wayne,  Catron,  Daniel,  Nelson, 
Grier,  Curtis,  and  Campbell.  The  Chief  Justice  and  Jus 
tices  Wayne,  Catron,  Daniel,  and  Campbell  were  from 
slave-holding  States ;  Justices  McLean,  Nelson,  Grier,  and 
Curtis  were  from  non-slave-holding  States.  The  case  of 
Dred  Scott  was  first  argued  at  the  December  term,  1855. 


202  MEMOIR    OF   BENJAMIN   "BOBBINS    CURTIS.  [1857. 

After  consideration  and  comparison  of  views,  it  was  deter 
mined  by  a  majority  of  the  judges  that  it  was  not  necessary 
to  decide  the  question  of  Scott's  citizenship  under  the  plea 
to  the  jurisdiction,  but  that  the  case  should  be  disposed  of 
by  an  examination  of  the  merits ;  that  is  to  say,  by  decid 
ing  whether  he  was  a  freeman  or  a  slave,  upon  the  facts 
agreed  upon  by  the  parties  under  the  plea  in  bar  of  the 
action.  One  of  the  questions  thus  arising  was,  as  the 
reader  has  seen,  whether  a  temporary  residence  of  a  slave 
in  the  State  of  Illinois  worked  an  emancipation,  notwith 
standing  his  return  to  Missouri.  If  it  did  not,  it  might  be 
unnecessary  to  act  upon  the  question  of  the  power  of  Con 
gress  to  prohibit  slavery  in  the  territory  of  the  United 
States,  into  which  Scott  had  been  taken  from  Illinois,  un 
less  there  were  circumstances  in  his  residence  in  the  Fed 
eral  territory  which  ought  to  lead  to  a  different  conclusion. 
It  was  assigned  to  Judge  Nelson  to  write  the  opinion  of  the 
court  upon  this  view  of  the  case;  in  which  view,  however, 
Judge  McLean  and  Judge  Curtis  did  not  concur.  Judge 
Nelson  wrote  an  opinion,  which,  from  its  internal  evidence, 
was  manifestly  designed  to  stand  and  be  delivered  as  the 
opinion  of  a  majority  of  the  bench.  This  opinion,  after 
referring  to  the  question  of  Scott's  citizenship,  as  arising 
on  the  plea  to  the  jurisdiction,  said:  "In  the  view  which 
we  have  taken  of  the  case,  it  will  not  be  necessary  to  pass 
upon  this  question,  and  we  shall  therefore  proceed  at  once 
to  an  examination  of  the  case  upon  its  merits.  The  ques 
tion  upon  the  merits  in  general  terms  is,  whether  or  not 
the  removal  of  the  plaintiff,  who  was  a  slave,  with  his  mas 
ter,  from  the  State  of  Missouri  to  the  State  of  Illinois,  with 
a  view  to  a  temporary  residence,  and,  after  such  residence 
and  return  to  the  slave  State,  such  residence  in  the  free 
State  works  an  emancipation."  The  opinion  then  pro 
ceeded  to  a  decision  of  the  case  upon  the  merits,  upon  the 
ground  that  the  highest  court  in  the  State  of  Missouri  had 
decided  that  a  residence  in  the  free  State  of  Illinois  had 


1357.]  DEED   SCOTT   CASE.  203 

not  changed  the  original  condition  of  Scott,  so  as  to  pre 
vent  that  condition  from  reattaching  upon  him  after  his 
return  to  Missouri ;  that  this  was  a  question  of  the  law  of 
Missouri,  on  which  the  Supreme  Court  of  the  United  States 
should  follow  the  law  as  it  had  been  laid  down  by  the  high 
est  tribunal  of  that  State.  The  conclusion  reached  by  this 
opinion  was,  not,  as  was  afterwards  directed,  that  the  case 
should  be  dismissed  for  want  of  jurisdiction,  but  that  the 
judgment  of  the  Circuit  Court,  which  had  held  Scott  to  be 
still  a  slave,  should  be  affirmed. 

The  astuteness  with  which  this  opinion  avoided  a  deci 
sion  of  the  question  arising  out  of  the  residence  of  Scott  in 
a  Territory  of  the  United  States  where  slavery  was  prohib 
ited  by  an  act  of  Congress,  and  the  remarkable  subtilty  of 
the  reasoning  that  this  too  was  a  matter  for  the  State  court 
to  decide,  because  the  law  of  the  Territory  could  have  no 
extra-territorial  force  except  such  as  the  State  of  Missouri 
might  extend  to  it  under  the  comity  of  nations,  —  show 
very  distinctly,  that,  after  the  first  argument  of  the  case  in 
the  Supreme  Court,  it  was  not  deemed,  by  a  majority  of 
the  bench,  to  be  either  necessary  or  prudent  to  express 
any  opinion  upon  the  constitutional  power  of  Congress  to 
prohibit  slavery  in  the  Territories  of  the  United  States. 
It  was  said  in  the  opinion  prepared  by  Judge  Nelson,  that 
u  even  conceding,  for  the  purposes  of  the  argument,  that 
this  provision  of  the  act  of  Congress  is  valid  within  the 
Territory  for  which  it  was  enacted,  it  can  have  no  opera 
tion  or  effect  beyond  its  limits,  or  within  the  jurisdiction  of 
a  State.  .  .  .  Our  conclusion  therefore  is,  upon  this  branch 
of  the  case,  that  the  question  involved  is  one  depending 
solely  upon  the  law  of  Missouri,  and  that  the  Federal 
court  sitting  in  the  State,  and  trying  the  case  before 
us,  was  bound  to  follow  it."  1  If  this  view  of  the  case 

1  Of  course,  this  question  of  the  binding  force  of  the  State  decision,  upon 
a  matter  depending  upon  international  comity,  and  the  effect  to  be  given  in 
Missouri  to  the  law  of  a  Territory  of  the  United  States,  was  one  on  which  a 
different  view  could  be  taken.  How  far  Judge  Curtis  considered  it  as  a 


204  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

had  been  adhered  to  by  a  majority  of  the  court,  no  judge 
would  have  placed  himself  on  record  as  holding  that  a  free 
negro  could  not  be  a  citizen,  and  therefore  could  not  obtain 
a  standing  in  the  Circuit  Court,  and  at  the  same  time  as 
holding,  under  a  subsequent  plea  to  the  merits,  that  he 
had  no  claim  to  freedom  because  the  Congress  of  the 
United  States  had  no  power  to  prohibit  slavery  in  the 
national  domain.  All  that  Judge  Curtis,  with  his  con 
victions  in  regard  to  the  entire  record,  would  have  had 
to  do,  would  have  been  to  show  that  he  regarded  the  plea 
to  the  jurisdiction  as  necessarily  before  him,  as  a  special 
traverse  of  the  plaintiff's  citizenship;  that  the  plaintiff  was 
a  citizen  ;  and  that  consequently  the  Circuit  Court  had 
jurisdiction  of  his  case  ;  and  then  to  have  shown  that  on 
the  merits  it  was  necessary  for  him  to  decide  the  constitu 
tional  validity  of  the  Territorial  law,  and  to  express  his 
opinion  upon  it,  with  his  reasons  for  regarding  its  effect 
on  the  status  of  the  plaintiff,  after  his  return  to  Missouri, 
as  a  question  of  more  than  mere  local  law,  and  not  one  to 
be  determined  necessarily  by  the  views  of  the  State  court 
of  Missouri.  This  was  the  course  of  reasoning  which  Judge 
Curtis  felt  bound  to  adopt,  and  did  adopt,  in  the  dissenting 
opinion  which  he  read  in  March,  1857 ;  and  if  the  opinion  of 
Judge  Nelson  had  stood  as  the  opinion  of  the  majority,  for 
which  it  was  originally  written,  no  iud^e  on  the  bench  would 

O  «7  *J  c? 

have  needed  to  express  the  opinion  that  the  restriction  of 
the  Missouri  Compromise  Act  was  unconstitutional. 

At  some  time  after  the  first  argument  of  the  case,  but 
during  the  same  term,  and  after  Judge  Nelson's  opinion 
had  been  written,  a  motion  was  made  in  a  conference  of 
the  court,  for  a  reargument  of  the  case  at  the  next  term.1 

mere  question  of  local  law,  or  as  being  a  broader  one  under  the  rules  of  private 
international  law,  and  how  far  he  regarded  the  last  decision  of  the  Supreme 
Court  of  Missouri  as  binding  upon  the  Federal  judiciary,  can  be  seen  by 
any  one  who  reads  his  dissenting  opinion. 

1  20  Wallace's  Reports,  p.  xi.,  Remarks  of  Judge  Campbell  at  a  Meeting 
of  the  Bar  of  the  Supreme  Court  after  the  death  of  Judge  Curtis. 


1857.]  DEED    SCOTT   CASE.  205 

This  motion  prevailed,  and  Judge  Nelson's  opinion  was 
consequently  set  aside.  Two  questions  were  then  carefully 
framed  by  the  Chief  Justice,  to  be  argued  de  novo  at  the 
bar,  in  the  following  terms  :  — 

1.  Whether,  after  the  plaintiff  had  demurred  to  the  defendant's 
first  plea  to  the  jurisdiction  of  the  court  below,  and  the  court  had 
given  judgment  on  that  demurrer  in  favor  of  the  plaintiff,  and  had 
ordered  the  defendant  to  answer  over,  and  the  defendant  had  sub 
mitted  to  that  judgment  and  pleaded  over  to  the  merits,  the  appel 
late  court  can  take  notice  of  the  facts  admitted  on  the  record  by 
the  demurrer,  which  were  pleaded  in  bar  of  the  jurisdiction  of  the 
court  below,  so  as  to  decide  whether  that  court  had  jurisdiction  to 
hear  and  determine  the  cause  ? 

2.  Whether  or  not,  assuming  that  the  appellate  court  is  bound 
to  take  notice  of  the  facts  appearing  upon  the  record,  the  plaintiff 
is  a  citizen  of  the  State  of  Missouri,  within  the  meaning  of  the 
eleventh  section  of  the  Judiciary  Act  of  1789? 

It  will  be  seen  that  these  questions,  in  substance  and  in 
terms,  related  to  the  facts  set  up  in  the  plea  to  the  juris 
diction,  and  to  the  power  of  the  appellate  court  to  act  upon 
those  facts,  after  that  plea  had  been  overruled  by  the  Cir 
cuit  Court,  and  the  defendant  had  been  ordered  to  plead  to 
the  merits,  and  on  those  facts  set  forth  in  the  plea  to  the 
jurisdiction  to  determine  the  citizenship  of  the  plaintiff.  If 
the  facts  of  Scott's  African  descent  and  the  slavery  of  his 
ancestors,  set  forth  in  the  plea  to  the  jurisdiction,  could  be 
rightly  taken  notice  of  in  the  appellate  court,  as  admitted 
by  the  plaintiff's  demurrer  to  that  plea,  and  if  it  should  be 
held  that  these  facts  amounted  in  law  to  proof  that  he  was 
not  a  "citizen,"  then  there  was  nothing  that  could  in  judi 
cial  propriety  be  done  but  to  order  the  case  to  be  dismissed 
for  want  of  jurisdiction.  But  if  it  should  be  held  that  on 
these  facts  —  assuming  that  the  appellate  court  was  bound 
to  notice  them  —  Scott  was  a  "  citizen,"  within  the  mean 
ing  of  the  Judiciary  Act,  then,  and  only  then,  it  would  be 
necessary  for  the  judges  to  act  upon  the  merits  of  the  case, 


206  MEMOIR    OF   BENJAMIN   BOBBINS    CUilTIS.  [1857. 

and  as  a  part  of  those  merits  to  determine  the  constitu 
tional  validity  of  the  Missouri  Compromise  restriction.  To 
meet  this  possible  result  of  a  decision  that  the  Circuit 
Court  had  jurisdiction  to  try  and  determine  the  case  on  its 
entire  merits,  the  counsel  for  Scott,  on  the  second  argu 
ment,  which  took  place  December  18, 1856,  argued  the  tech 
nical  questions  arising  out  of  the  plea  to  the  jurisdiction,  the 
question  of  the  citizenship  of  a  free  negro,  and  the  consti 
tutional  validity  and  effect  of  the  Territorial  law,  as  well  as 
the  effect  of  the  residence  in  Illinois  and  in  the  Territory. 
The  counsel  for  the  defendant-in-error,  the  alleged  owner 
of  Scott,  also  argued  most  elaborately  all  of  the  same 
questions. 

After  this  second  argument,  and  at  some  time  during 
the  same  term,  Mr.  Justice  Wayne  became  convinced  that 
it  was  practicable  for  the  Supreme  Court  of  the  United 
States  to  quiet  all  agitation  on  the  question  of  slavery  in 
the  Territories,  by  affirming  that  Congress  had  no  consti 
tutional  power  to  prohibit  its  introduction.  With  the  best 
intentions,  with  entirely  patriotic  motives,  and  believing 
thoroughly  that  such  was  the  law  on  this  constitutional 
question,  he  regarded  it  as  eminently  expedient  that  it 
should  be  so  determined  by  the  court.  In  the  short  obser 
vations  Avhich  he  read  in  the  court,  referring  to  the  consti 
tutional  questions  involved,  he  said  that  "  the  peace  and 
harmony  of  the  country  required  the  settlement  of  them  by 
judicial  decision;"  and  it  is  well  known,  from  his  frank 
avowals  in  conversation  at  the  time,  that  he  regarded  it  as 
a  matter  of  great  good  fortune  to  his  own  section  of  the 
country,  that  he"  had  succeeded  in  producing  a  determina 
tion,  on  the  part  of  a  sufficient  number  of  his  brethren,  to 
act  upon  the  constitutional  question  which  had  so  divided 
the  people  of  the  United  States.  He  persuaded  the  Chief 
Justice,  Judge  Grier,  and  Judge  Catron  of  the  public  ex 
pediency  of  this  course ;  and  being  perfectly  convinced,  as 
he  somehow  had  convinced  himself,  that  the  appellate 


1857.]  DEED   SCOTT   CASE.  207 

court  could  hold  that  the  Circuit  Court  had  no  jurisdiction 
of  the  case,  because  a  free  negro  could  not  be  a  "  citizen," 
and  yet  could  go  on  and  decide  all  questions  arising  upon 
the  merits,  he  could  conscientiously  concur,  as  he  did,  in 
every  part  of  the  opinion  which  the  Chief  Justice,  after 
the  second  argument,  felt  called  upon  to  write,  and  which 
was  denominated  the  opinion  of  the  court,  although  no 
other  judge,  excepting  Mr.  Justice  Wayne,  concurred  in 
all  its  points,  reasonings,  and  conclusions. 

It  has  been  already  seen,  I  trust,  that  no  imputation  is 
here  intended  to  be  cast  upon  the  purity  and  good  inten 
tions  of  any  of  the  judges.  But  it  was  a  fatal  mistake  for 
any  of  them  to  suppose  that  the  doctrine  that  slavery  could 
go,  proprio  vigore,  into  any  Territory  of  the  United  States, 
against  the  prohibition  of  an  act  of  Congress,  could  be  re 
ceived  by  the  people  of  the  North,  even  if  a  majority  of 
the  judges  of  the  Supreme  Court  did  individually  hold  that 
opinion.  It  was  a  fatal  mistake  for  any  of  them  to  sup 
pose,  that  they  could  convince  the  judicial  mind  of  the 
Free  States  that  it  was  at  once  proper  for  them  to  hold  that 
the  Circuit  Court  had  no  jurisdiction  of  the  case,  and  then 
to  decide  a  constitutional  question  which  arose  only  on  the 
pleas  to  the  merits  of  the  action.  It  was  not  so  that  the 
legal  profession  had  been  accustomed  to  see  constitutional 
questions  reached,  acted  upon,  and  decided  in  the  Supreme 
Court  of  the  United  States.  All  lawyers  who  knew  much 
of  the  Federal  jurisprudence,  knew  that  a  constitutional 
question,  like  any  other  question  of  law,  can  be  decided  by 
the  Supreme  Court  of  the  United  States,  so  as  to  bind  the 
consciences  of  public  or  private  men,  only  when  the  case, 
as  the  court  finds  it  to  be,  is  one  to  which  the  judicial  power 
of  the  United  States  extends. 

The  action  of  a  majority  of  the  judges  in  this  case,  in 
stead  of  promoting  the  peace  and  harmony  of  the  country, 
as  Judge  Wayne  hoped  it  would,  was  in  reality  most  dis 
astrous  to  them.  Nothing  that  had  previously  happened 


208  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

had  afforded  so  much  excuse  for  the  consolidation  of  a 
sectional  Northern  party,  in  array  against  the  supposed 
influence  of  the  "  slave-power  "  in  national  affairs.  Noth 
ing  had  been  such  a  godsend  to  all  the  army  of  agitators, 
and  to  men  who  expected  to  thrive  politically  upon  the 
Northern  dislike  of  slavery.  Nothing  had  been  more  in 
jurious  to  the  best  interests  of  the  South,  whose  safety 
required  that  their  claim  of  equality  in  the  Union  should 
not  be  understood  to  embrace  a  claim  to  the  occupation  by 
slaves  of  all  the  Territories  of  the  United  States,  with  no 
power  in  Congress  to  prepare  any  of  them  to  become  free 
States.  It  is  often  said  that  a  judge  is  to  declare  what  he 
believes  to  be  the  law,  regardless  of  consequences ;  and, 
Avithin  proper  limits,  this  is  a  just  and  accurate  theory  of 
the  judicial  function.  When  those  limits  are  observed, 
there  is  no  more  noble  exhibition  of  human  character,  as 
there  is  no  more  necessary  and  salutary  exercise  of  human 
independence,  than  is  displayed  by  a  judge  who  looks  to 
nothing  that  may  flow  as  an  incidental  consequence  from 
his  declaration  of  the  law.  This  is  as  true  of  constitu 
tional  questions  as  it  is  of  all  others.  But  the  judge  who 
expects  immunity  from  the  consequences  of  his  acts  must 
take  care  that  his  judicial  duties  strictly  require  of  him  the 
act  which  he  performs.  If  they  do  not,  if  he  goes  out  of 
his  Avay  to  express  opinions  which  he  is  not  judicially  bound 
to  express,  or  cannot  with  judicial  consistency  utter  from 
the  bench,  he  is  responsible  for  the  mischief  which  he  does, 
in  proportion  to  the  importance  of  the  office  which  he 
holds.  And  even  if  we  give,  as  I  have  always  certainly 
desired  to  give,  all  personal  credit  for  purity  of  purpose  to 
those  judges  who  sought,  in  this  case,  to  promote  the  peace 
and  harmony  of  the  country,  it  is  too  obvious  that  thev 
Avere  not,  from  their  positions  and  habits  of  life,  qualified 
to  discover  or  to  weigh  the  means  by  which  it  could  be 
done.  This  was  the  office  of  statesmen  and  not  of  judges. 
Above  all,  the  Southern  judges  Avere  very  ill  qualified  to 


1857.1  DRED    SCOTT   CASE.  209 

calculate  with  safety  what  would  be  the  effect  in  the  North 
of  their  individual  declarations  that  slavery  travelled  into 
all  the  Territories,  as  a  matter  of  constitutional  right.1 

Among  the  curious  incidents  connected  with  this  case  of 
Dred  Scott  there  is  one  which  has  never  heretofore  been 
publicly-  noticed,  and  which  strongly  illustrates  the  vacilla 
tion  of  some  of  the  judges  in  regard  to  its  final  disposal.  At 
the  same  term  at  which  Scott's  case  was  first  argued,  (De 
cember  term,  1855,)  a  case  was  argued  and  decided,  which 
stands  reported  in  the  eighteenth  volume  of  Howard's  Re 
ports  under  the  name  of  Pease  v.  Peck.  It  involved  the 
effect  that  should  be  given  by  the  Supreme  Court  of  the 
United  States  to  the  decisions  of  a  State  court  upon  a  ques 
tion  of  the  State  law.  It  was  assigned  to  Judge  Grier  to 
Avrite  the  opinion  of  the  court.  The  decision  was  adverse 
to  that  of  the  State  court  on  the  question  of  State  law  ; 
and  the  case  in  the  Supreme  Court  of  the  United  States 
was  not  on  a  writ  of  error  to  the  State  court,  but  it  was,  as 
in  Scott's  case,  on  a  writ  of  error  to  a  Circuit  Court  of  the 
United  States.  Knowing  from  the  first  argument  of  Scott's 

1  Among  all  the  strange  things  that  were  said  in  this  case,  perhaps  the 
most  unaccountable  is  what  was  said  by  Judge  Grier,  who  thought  that  the 
record  showed  a  prima  facie  case  of  jurisdiction,  requiring  the  court  to  decide 
all  the  questions  properly  arising  in  it ;  that,  as  the  decision  of  the  pleas  in 
bar  showed  that  the  plaintiff  was  a  slave,  and  therefore  not  entitled  to  sue 
in  a  court  of  the  United  States,  the  form  of  the  judgment  was  of  little  im 
portance ;  for,  he  said,  whether  the  judgment  (of  the  lower  court)  be 
affirmed,  or  dismissed  for  want  of  jurisdiction,  it  is  justified  by  the  decision 
of  the  court,  and  is  the  same  in  effect  between  the  parties  to  the  suit.  Yet 
it  was  solely  by  reason  of  the  distinction  between  dismissing  or  not  dismiss 
ing  the  case  for  want  of  jurisdiction,  and  affirming  on  the  pleas  to  the  merits 
that  Scott  was  or  was  not  a  slave,  that  Judge  Grier,  or  any  other  member  of 
the  court,  could  obtain  the  judicial  right  to  declare  that  the  act  of  Congress 
which  prohibited  slavery  in  the  Territory  was  or  was  not  unconstitutional 
and  void.  Perhaps  no  man  ever  said,  in  the  compass  of  less  than  half  a 
printed  page,  more  that  was  unsound,  than  Mr.  Justice  Grier  said  in  his  few 
recorded  observations  in  this  case.  Yet  he  was  a  man  of  great  vigor  of 
mind,  and  of  no  common  logical  power.  But  he  had  somehow  become  con 
vinced  that  it  would  be  useful  to  the  country  for  him  to  agree  with  the 
Chief  Justice,  that  Congress  could  not  prohibit  the  existence  of  slavery  in  a 
Territory. 

VOL.  i.  14 


210  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1857. 

case  that  the  effect  of  the  last  decision  of  the  Supreme 
Court  of  Missouri  would  be  involved  in  the  consideration 
of  the  merits,  —  because  the  Supreme  Court  of  Missouri  had 
held  Scott  to  be  a  slave,  on  his  return  into  that  State,  not 
withstanding  his  residence,  with  his  master,  in  a  free  State 
and  a  free  Territory,  —  Judge  Grier,  representing  a  majority 
of  the  court,  laid  down,  in  his  opinion  in  the  case  of  Pease 
v.  Peck,  a  very  broad  rule  in  regard  to  the  binding  force  of 
State  decisions,  in  the  Supreme  Court  of  the  United  States, 
on  questions  of  State  law.  The  rule  thus  propounded  was 
stated  to  be,  that  in  all  cases  where  there  is  a  settled  con 
struction  of  the  laws  of  a  State,  by  its  highest  judicature,  it 
is  the  practice  of  the  courts  of  the  United  States  to  receive 
and  adopt  it  without  criticism  or  further  inquiry;  but  that 
when  the  decisions  of  the  State  court  are  not  consistent, 
the  judges  of  the  Supreme  Court  of  the  United  States  do 
not  feel  bound  to  follow  the  last,  if  it  is  contrary  to  their 
own  convictions.1  This  was  deliberately  and  purposely  laid 
down  as  the  rule,  not  only  to  justify  the  intended  decision 
in  Pease  v.  Peck,  but  also  in  order  to  make  a  precedent 
under  which  the  judges,  when  Scott's  case  should  be  finally 
acted  upon,  might  be  free  to  disregard  the  last  decision  of 
the  Supreme  Court  of  Missouri,  and  to  give  Scott  the  benefit 
of  their  own  convictions  upon  the  question  of  his  status, 
after  his  return  to  that  State,  if  they  should  differ  from  the 
State  court.2  Unfortunately,  when  Scott's  case  came  to 
be  finally  acted  upon,  the  opinion  of  the  Chief  Justice  made 
no  allusion  to  what  had  been  said  in  the  case  of  Pease  v. 
Peck,  but  it  attributed  to  the  last  decision  of  the  State 
court  the  most  stringent  effect  that  was  ever  given  to  a 
State  decision,  and  that,  too,  on  a  question  of  personal  free 
dom.  But  the  great  question  on  this  part  of  the  case  was, 

1  See  the  opinion  in  Pease  v.  Peck,  18  Howard's  Rep.  505,  598. 

2  I  make  this  statement  on  the  authority  of  a  gentleman  still  living,  —  Mr. 
Edward  N.  Dickerson,  of  New  York,  —  an  intimate  friend  of  Judge  Grier, 
who  was  so  informed  by  Judge  Grier  himself,  at  the  time  when  Pease  v.  Peck 
was  decided. 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.        211 

whether  the  status  of  Scott  was  a  mere  matter  of  the  local 
law  of  Missouri,  or  whether  it  was  a  question  of  universal 
jurisprudence,  on  which  the  Supreme  Court  of  the  United 
States  was  not  bound  by  the  decisions  of  the  State  court. 
The  Chief  Justice  treated  it  as  a  mere  question  of  local 
law.  Judge  Curtis  treated  it  as  a  question  of  international 
law.  whose  rules  required  the  status  of  Scott,  as  fixed  by  the 
laws  of  the  Territory  of  Wisconsin,  to  be  recognized  in 
Missouri  by  the  Federal  court  sitting  in  that  State. 

I  have  already  stated,  that,  after  the  second  argument  of 
the  case,  the  Chief  Justice  prepared,  and  read  in  a  confer 
ence  of  the  court,  the  opinion  which  was  read  publicly  as 
"  the  opinion  of  the  court "  on  the  6th  of  March,  1857.  Of 
course,  the  judges  who  did  not  concur  in  that  opinion  had 
an  opportunity  to  write  their  dissents  from  what  they  had 
heard  read  in  the  conference.  Judge  Curtis,  who  had  heard 
the  Chief  Justice's  opinion  read  in  the  conference-room, 
deemed  it  his  duty  to  dissent  from  it  throughout.  When 
the  time  for  acting  publicly  upon  the  case  arrived,  and  on 
the  last  day  of  the  term  (the  7th  of  March),  Judge  Curtis's 
dissenting  opinion  was  read.  It  was  immediately  filed  in 
the  clerk's  office,  as  the  rule  of  the  court  required ;  but  the 
opinion  of  the  Chief  Justice,  which  had  been  publicly  read 
on  the  previous  day,  was  not  filed.  After  the  adjournment 
of  the  court,  and  on  that  day,  the  editor  of  a  Boston  news 
paper,  or  his  agent  in  Washington,  applied  to  Judge  Curtis 
for  a  copy  of  his  dissenting  opinion.  It  was  given  to  him, 
because  Judge  Curtis  supposed  that  all  the  opinions  had 
been  filed  as  the  rule  required,  and  that  they  would  there 
fore  be  accessible  to  the  press,  and  would  be  published  for 
the  information  of  the  public,  just  as  they  had  been  read. 
The  copy  of  his  dissenting  opinion  was  taken  to  Boston,  and 
in  a  few  days  it  was  published.  In  the  mean  time,  Jrtdge 
Curtis  had  gone  on  a  short  visit  into  Virginia.  After  his 
return  to  his  home  in  Pittsfield,  in  the  western  part  of 
Massachusetts,  without  going  through  Boston,  ho  was  in- 


212  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

formed  that  the  opinion  of  the  Chief  Justice,  from  which 
he  had  dissented,  had  been  revised  and  materially  altered. 
Thereupon,  on  the  2d  of  April  (1857),  he  wrote  to  Mr. 
Carroll,  the  Clerk  of  the  Supreme  Court,  requesting  him  to 
send  him  a  copy  of  the  Chief  Justice's  opinion  when  printed}- 
The  Clerk  replied  as  follows  :  — 

To  MR.  JUSTICE  CURTIS,  &c.,  &c. 

MY  DEAR  SIR,  — I  am  this  morning  in  the  receipt  of  your  favor 
of  the  2d  instant,  and  regret  that  it  is  not  in  my  power  to  send  you 
a  copy  of  the  opinion  in  No.  7,  Scott  v.  Sandford.  That,  as  well  as 
the  opinions  of  yourself,  Judge  Wayne,  Judge  Nelson,  and  Judge 
McLean,  we  have  not  yet  had  printed.  But  hope  to  have  them 
done  in  about  ten  days. 

As,  however,  the  Chief  Justice  had  directed  me  not  to  furnish  a 
copy  of  his  opinion  to  any  one,  without  his  permission,  before  it 
is  published  in  Howard's  Reports,  allow  me  to  suggest  that  you 
request  him  to  direct  me  in  the  premises. 

Very  sincerely  yours, 

WM.  THOS.  CARROLL. 

WASHINGTON,  April  6,  1857. 

On  the  9th  of  April,  Mr.  Justice  Curtis  replied  to  the 
above,  and,  after  acknowledging  its  receipt,  says:  — 

"  I  wish  to  see  only  this  opinion  of  the  court,  and  you  will  please 
send  me  a  copy  of  that  as  soon  as  it  is  in  print,  and  charge  any  ex 
pense  to  me.  You  mention  that  the  Chief  Justice  had  directed  you 
not  to  furnish  a  copy  of  his  opinion  to  any  one,  without  his  permis 
sion,  before  it  is  published  in  Howard's  Reports.  If,  by  his  opinion, 
you  mean  the  opinion  delivered  by  the  Chief  Justice  as  the  opinion 
of  the  majority  of  the  court,  I  can  hardly  suppose  the  direction 
was  intended  to  apply  to  and  include  a  member  of  the  court  who 
has  occasion  to  examine  the  opinion  before  its  publication.  If  you 
have  the  least  doubt  upon  the  point,  it  is  certainly  proper  for  you  to 
consult  him  before  you  send  me  the  copy." 

1  It  was  the  practice  of  the  Clerk  to  prepare  printed  copies  of  all  opin 
ions  of  the  judges  filed  in  the  office,  before  their  publication  by  the  official 
Keporter  of  the  court. 


1857.]      CORKESPONDENCE  WITH  THE  CHIEF  JUSTICE.        213 

In  answer  to  this  letter  Mr.  Justice  Curtis  received  the 
following :  — 

To  MR.  JUSTICE  CURTIS,  SUPREME  COURT,  U.  S. 

MY  DEAR  SIR,  —  I  duly  received  your  favor  of  the  9th  instant, 
suggesting  that  I  might  have  mistaken  the  directions  of  the  Chief 
Justice  referred  to  by  my  letter  of  the  6th  instant.     In  reply,  I  beg 
to  inform  you  that,  after  mailing  that  letter,  I  called  to  see  the 
Chief  Justice ;  told  him  how  I  had  understood  his  directions,  and 
that  I  had  so  written  you  ;  and  that  he  then  told  me  that  I  had 
understood  him  correctly,  and  reiterated  the  direction. 
With  the  highest  esteem  and  regard,  I  remain,  dear  sir, 
Very  truly  yours, 

WM.  THOS.  CARROLL. 
WASHINGTON,  April  14,  1857. 

Even  after  this  second  letter  from  the  Clerk  had  been 
received,  Mr.  Justice  Curtis  could  not  believe  it  possible 
that  one  of  the  members  of  the  court  should  be  refused 
access  to  its  records ;  and  with  the  desire  to  discover  the 
actual  state  of  affairs,  he  wrote  to  Mr.  Chief  Justice  Taney, 
on  the  18th  of  April,  and  said :  — 

"  I  cannot  suppose  it  was  your  intention  to  preclude  me  from 
having  access  to  an  opinion  of  the  court  in  the  only  way  possible 
for  me  to  obtain  it ;  and  if  it  was  not,  you  will  confer  a  favor  upon 
me  by  directing  the  Clerk  to  comply  with  my  request." 

To  this  the  Chief  Justice  replied  as  follows :  — 

HON.  B.  R.  CURTIS,  PITTSFIELD,  MASS. 

BALTIMORE,  April  28,  1857. 

DEAR  SIR,  —  I  have  been  in  Baltimore  for  the  last  two  weeks, 
holding  the  Circuit  Court ;  and,  owing  to  my  absence  from  Wash 
ington,  did  not  receive  your  letter  until  a  few  days  ago,  and  could 
not  answer  it  until  I  obtained  from  Washington  a  copy  of  the  order 
under  which  the  clerk  declined  to  send  you  a  copy  of  the  opinion 
of  the  court  in  the  case  of  Scott  v  Sandford.  I  herewith  en 
close  it.1 

1  See  page  216. 


214  MEMOIR    OF    BENJAMIN  BOBBINS   CURTIS.  [1857. 

It  is,  however,  proper  that  I  should  explain  to  you  the  reasons 
for  giving  the  order.  Soon  after  the  decision  was  given,  circum 
stances  occurred  which  satisfied  the  court  that  justice  to  itself 
required  that  the  opinion  in  this  case  should  be  reported  and 
brought  before  the  public  under  the  usual  supervision  and  re 
sponsibility  of  the  officer  appointed  by  the  court  to  perform 
that  duty ;  and  that  it  ought  not  to  be  separated  from  all  of 
the  other  opinions  delivered  by  the  court  during  the  term,  and 
hurried  before  the  public  in  an  unusual  manner,  by  irresponsible 
reporters,  through  political  and  partisan  newspapers,  for  politi 
cal  and  partisan  purposes.  It  became  my  duty  to  carry  into 
effect  this  determination  of  the  court ;  and  I  therefore  gave  an 
order  to  Mr.  Carroll  not  to  give  a  copy  to  any  one  but  the  official 
reporter. 

The  order  in  the  first  instance  was  verbal.  But  some  time  before 
the  opinion  was  printed  and  had  undergone  the  accustomed  revision 
of  a  printed  copy,  Mr.  Carroll  mentioned  to  me  that  he  had  been 
applied  to  for  a  copy  by  Mr.  Charles  P.  Curtis,  and  wished  to 
know  whether,  from  his  near  and  intimate  connection  with  you,  he 
would  not  be  excepted  from  the  operation  of  the  order.  Upon  my 
inquiring  if  Mr.  Curtis  had  stated  for  what  purpose  he  wished  a 
copy,  he  showed  me  his  letter,  in  which  Mr.  Curtis  says  he  is  about 
to  publish  a  large  edition  of  your  opinion  in  a  pamphlet,  and  wished 
"  to  introduce  that  of  the  Chief  Justice  "  with  yours,  meaning,  I 
presume,  the  opinion  of  the  court  delivered  by  me.  I  told  Mr. 
Carroll  he  could  not  have  it  for  such  a  purpose.  It  appeared  to 
me  that  Mr.  Curtis  himself,  upon  more  consideration,  would  feel 
that  his  plan  was  open  to  serious  objections.  For  the  publica 
tion  of  your  individual  opinion  in  this  manner,  in  connection 
with  that  of  the  court,  leaving  out  the  individual  opinions  of 
the  other  judges,  would  hardly  be  respectful  to  them,  as  it  would 
seem  to  imply  that  he  thought  their  opinions  less  worthy  of  pub 
lication  than  yours ;  and,  also,  that  upon  further  reflection  he 
would  hardly  feel  justified  in  anticipating  the  official  reporter  in 
the  publication  of  this  opinion  of  the  court,  and  thereby  taking 
for  his  own  emolument  the  profits  arising  from  its  sale,  which 
legitimately  and  justly  belong  to  the  officer  appointed  by  law  to 
perform  that  duty.  And  it  is  due  to  frankness  also  to  say,  that 
I  thought  it  would  have  been  as  well  for  any  gentleman,  before 
he  undertook  to  report  the  opinion  of  the  court  under  his  own 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.        215 

supervision,  and  in  what  manner  and  in  what  form  he  pleased, 
anticipating  the  officer  of  the  court,  to  have  asked  and  obtained 
leave  of  the  tribunal  to  do  so. 

A  few  days  after  I  had  given  Mr.  Carroll  the  answer  above 
mentioned  to  the  application  of  Mr.  Charles  P.  Curtis,  he  showed 
me  your  first  letter  directing  him  to  send  you  a  copy,  and  told 
me  the  answer  he  had  given,  and  inquired  whether  he  had  cor 
rectly  understood  the  order  in  applying  it  to  you.  I  told  him  he 
had. 

As  I  was  about  to  leave  Washington  for  some  weeks,  and 
desired  to  relieve  Mr.  Carroll  from  any  undue  responsibility  in  this 
matter,  I  put  the  order  in  writing,  with  the  concurrence  and  appro 
bation  of  Mr.  Justice  Wayne  and  Mr.  Justice  Daniel,  who  were 
the  only  two  justices  beside  myself  then  in  Washington,  and  author 
ized  Mr.  Carroll  to  show  it,  or  give  a  copy  of  it,  to  any  one  who 
might  apply  for  a  copy  of  the  opinion. 

It  would  seem  from  your  letter  to  me  that  you  suppose  you  are 
entitled  to  demand  it  as  a  right,  being  one  of  the  members  of  the 
tribunal.  This  would  undoubtedly  be  the  case  if  you  wished  it  to 
aid  you  in  the  discharge  of  your  official  duties.  But  I  understand 
you  as  not  desiring  or  intending  to  use  it  for  that  purpose.  On 
the  contrary,  you  announced  from  the  bench  that  you  regarded 
the  opinion  as  extra-judicial,  and  not  binding  upon  you  or  any  one 
else.  And  if  the  opinion  of  the  court  is  desired  by  the  judge,  not 
to  aid  him  in  the  discharge  of  his  official  duties,  but  for  some  other 
unexplained  purpose,  I  do  not  see  that  his  position  in  relation  to  a 
copy  of  the  opinion  differs  in  any  respect  from  that  of  any  other 
person.  And  I  cannot  admit  that  any  one  judge  has  the  right  to 
take  away  from  the  court  the  control  over  its  own  opinion  before 
it  is  officially  reported,  or  has  the  right  to  overrule  its  judgment,  if 
he  thinks  proper,  in  a  matter  which  nearly  concerns  its  judicial 
character  and  standing,  and  more  especially  the  judicial  char 
acter  and  standing  of  the  members  of  the  court  who  gave  the 
opinion. 

You  will   observe   that   the    order  applies   to   every  individual 
member  of  the  tribunal  as  well  as  to  yourself,  although  it  so  hap 
pens  that  you  are  the  only  one  who  has  applied  for  a  copy. 
I  am,  respectfully,  dear  sir,  your  obedient  servant, 

R.  B.  TANEY. 


216  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

The  u  order  of  the  court,"  which  is  referred  to  above,  is 
contained  in  the  following  communication  addressed  to  the 
clerk  :  — 

To  WILLIAM  THOMAS  CARROLL,  ESQ., 

Clerk  of  the  Supreme  Court,  Washington. 

WASHINGTON,  April  6,  1857. 

DEAR  SIR,  —  I  understand  several  applications  have  been  made 
to  you  for  a  copy  of  the  opinion  in  the  case  of  Dred  Scott  v.  Sand- 
ford.  No  one  has  a  right  to  a  copy  of  the  opinion  of  the  court  until 
it  is  reported  and  published  by  the  reporter.  He  is  the  officer  to 
whom  the  law  confides  the  duty  of  bringing  the  opinions  of  the 
Supreme  Court  fairly  and  fully  before  the  public,  and  of  making 
them  equally  accessible  at  the  same  time  to  every  one. 

I  have  observed  that  the  opinion  of  the  court  has  been  greatly 
misunderstood  and  grossly  misrepresented  in  publications  in  the 
newspapers.  It  is  impossible  that  the  court,  or  any  member  of  the 
majority  which  gave  the  opinion,  having  a  proper  regard  to  their 
judicial  positions,  can  enter  into  discussions  with  gentlemen  who 
write  for  newspapers,  in  order  to  correct  misstatements  in  these 
publications.  It  is  due  to  the  court,  therefore,  as  well  as  to  the 
public,  that  the  opinion  in  the  case  above  mentioned  should  be 
allowed  to  speak  for  itself,  and  not  be  brought  before  the  public 
garbled  and  mutilated,  and  with  false  glosses  attached  to  it.  The 
law  and  the  court  confide  it  to  the  reporter  to  do  this,  and  to  no 
one  else. 

You  will  therefore  give  no  copy  of  this  opinion  to  any  one,  until 
the  reporter  has  printed  it,  and  has  it  in  readiness  for  general  dis 
tribution,  so  as  to  be  accessible  to  any  one  who  may  choose  to 
purchase  it. 

Respectfully,  dear  sir,  your  obedient  servant, 

R.  B.  TANEY. 

I  have  read  this  letter  from  the  Chief  Justice  to  Mr.  Carroll, 
and  concur  in  it  entirely. 

JAMES  M.  WAYNE. 

I  entirely  concur  in  the  opinion  and  instruction  given  by  the 
Chief  Justice  to  the  clerk. 

P.  V.  DANIEL. 


1857.]      CORHESPOXDENCE  WITH  THE  CHIEF  JUSTICE.         217 

Having  received  the  above,  called  forth  by  his  simple  re 
quest  for  a  copy  of  the  opinion  of  the  court,  Judge  Curtis 
sent  the  following  reply  to  the  Chief  Justice :  — 

PITTSFIELD,  May  13,  1857. 

DEAR  SIR,  —  Your  letter  of  the  28th  ultimo  came  here  during 
my  absence  from  home  on  the  circuit.  I  avail  myself  of  the  earliest 
practicable  opportunity  to  reply  to  it.  It  is  due  to  that  harmony 
of  feeling  among  the  members  of  the  court,  which  concerns  not 
only  themselves  but  the  public  interest,  and  it  is  due  to  the  unaf 
fected  respect  I  feel  for  you,  that  I  should  reply  to  it  frankly. 

I  wrote  to  the  clerk  of  the  Supreme  Court,  saying  I  had  occa 
sion  to  examine  its  opinion  in  the  case  of  Scott  v.  Sandford,  and 
desiring  him  to  send  me  a  copy  of  the  opinion  when  it  should  be  in 
print.  I  was  told,  in  reply,  that  you  had  directed  him  not  to  allow 
any  one  to  have  a  copy  of  the  opinion  until  it  should  be  published 
by  the  reporter ;  and  that,  on  inquiring  of  you,  he  had  been  told 
that  I  was  included  in  the  prohibition.  I  thought  there  must  be 
some  mistake  on  the  part  of  Mr.  Carroll,  and  therefore  addressed 
myself  to  you.  It  seemed  to  me,  that  when  a  judge  called  on  the 
clerk  of  the  court  to  furnish  him  with  a  copy  of  one  of  its  acts, 
required  by  its  rules  to  be  entered  on  its  records,  and  stated  that 
he  had  occasion  to  examine  it  before  its  publication  in  the  printed 
reports  of  the  proceedings,  neither  the  clerk  nor  any  one  else  had 
a  right  to  presume  that  he  had  not  occasion  to  examine  it  for  a 
purpose  connected  with  his  official  duty,  and  to  deny  him  access  to 
it.  And  therefore  I  supposed  Mr.  Carroll  had  in  some  way  mis 
interpreted  his  instructions. 

Your  letter  informs  me  he  did  not,  and  explains  the  order  under 
which  he  acted,  and  also  details  some  matters  personal  to  myself, 
which  you  suppose  to  be  connected  with  my  direction  to  Mr. 
Carroll. 

As  respects  what  you  say  concerning  Mr.  C.  P.  Curtis's  applica 
tion  to  the  clerk  for  a  copy  of  the  opinion  of  the  court,  I  have  only 
to  observe,  that  whatever  application  Mr.  Curtis  may  have  made 
was  without  my  knowledge ;  that  I  had  no  connection  with  it 
whatever,  and  do  not  perceive  why  I  should  make  any  observa 
tions  concerning  it,  or  concerning  the  purpose  for  which  you  say  it 
was  desired.  If  any  one  has  supposed  that  I  was  availing  myself 
of  my  official  relation  to  the  records  of  the  court  to  enable  Mr.  C. 
P.  Curtis  to  obtain  indirectly  through  me  what  he  could  not  obtain 


218  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS. 

directly  for  himself,  such  person  has  done  an  injustice  to  me  which 
I  believe  a  more  intimate  acquaintance  with  my  character  would 
have  saved  him  from.1 

You  speak  of  my  desiring  the  copy  for  some  unexplained  pur 
pose.  I  certainly  did  not  think  it  necessary  to  explain  to  the 
clerk  of  the  court  the  purpose  for  which  I  wanted  a  copy  of  one  oi 
its  records.  I  thought  it  enough  for  me  to  say  I  had  occasion  to 
examine  it.  To  yourself,  if  I  had  imagined  air  explanation  neces 
sary,  I  could  have  felt  no  objection  to  make  it,  though  I  do  not 
consider  myself  bound  to  do  so.  But  no  explanation  was  asked ; 
and  the  clerk  was  simply  directed  not  to  comply  with  my  call  on 
him.  Still,  though  no  explanation  has  now  been  asked,  and 
though  you  appear  to  have  assumed  that  I  desired  the  paper  for 
some  other  than  an  official  use,  I  think  it  proper  to  state  what  my 
object  was  in  calling  for  the  copy. 

I  had  an  official  duty  to  perform  which  alone  caused  me  to 
apply  for  the  copy.  In  my  judgment,  and  I  cannot  doubt  you 
will  agree  with  me,  a  judge  who  dissents  from  an  opinion  of  a 
majority  of  the  court  upon  questions  of  constitutional  law  which 
deeply  aifect  the  country,  discharges  an  official  duty  when  he  lays 
before  the  country  the  grounds  and  reasons  of  his  dissent.  That 
he  may  do  so,  it  is  necessary  he  should  know,  and  know  accu 
rately,  what  the  opinion  of  the  majority  is,  and  its  grounds  and 
reasons.  For  this  end,  opinions  of  the  majority  are  read,  before 

1  I  find  among  the  papers  relating  to  this  case  a  note  in  the  handwriting  of 
Judge  Curtis,  in  which  he  says  that  Mr.  Charles  P.  Curtis  wrote  to  him  to  ask 
if  he  knew  how  he  (Mr.  C.  P.  Curtis)  could  obtain  a  copy  of  the  opinion  of  the 
court.  The  note  then  proceeds:  "I  answered  that  I  did  not.  Subsequently, 
he  mentioned  to  me  that  he  had  a  letter  from  Mr.  Carroll,  saying  that  he 
could  have  a  copy  for  sixty  dollars  ;  upon  which  I  made  no  comment."  And 
again  :  "  In  respect  to  the  propriety  of  Mr.  Curtis's  intentions,  I  do  not  feel 
called  on  to  enter  into  any  discussion,  further  than  to  observe,  that,  as  he 
proposed  to  distribute  the  pamphlet  gratuitously,  he  could  have  no  intention 
to  take  for  his  own  use  the  emoluments  arising  from  its  sale ;  and  that  it  did 
not  occur  to  me,  when  the  subject  was  spoken  of  by  him,  nor  does  it  now 
seem  to  me,  on  reflection,  that  such  a  publication  would  be  disrespectful  to 
those  judges  whose  opinions  would  not  be  included.  I  remember  being  told 
that  the  opinions  of  Judge  Daniel  and  Chief  Justice  Taney,  in  the  Wheeling 
Bridge  case,  were  published  without  the  opinion  of  the  court,  and  extensively 
circulated  in  Virginia  and  west  of  the  mountains.  I  thought  at  the  time 
this  was  done  to  promote  the  views  of  those  in  whose  favor  those  opinions 
were ;  and  it  did  not  occur  to  me  that  such  a  publication  was  disrespect 
ful  to  myself  and  to  the  other  judges  who  concurred  in  the  opinion  of  the 
court." 


1857.J      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.        219 

they  are  promulgated,  in  presence  of  all  the  judges  ;  and  not  merely 
made  known  privately  to  those  judges  who  concur  in  them.  This 
opinion  of  the  court,  prepared  by  yourself,  was  so  read  in  confer 
ence  of  all  the  judges.  I  was  thus  informed  what  it  was,  and 
shaped  my  dissent  from  that  opinion  accordingly.  After  I  re 
turned  home,  I  was  informed  that  this  opinion,  from  which  I  had 
dissented,  had  been  revised  and  materially  altered.  I  did  not 
know  whether  the  information  was  true  or  false.  I  had  no  dis 
position  to  raise  any  question  on  the  subject.  I  had  understood 
that  some  difference  of  opinion  as  to  the  effect  of  the  42d  rule  of 
the  court  had  heretofore  arisen.  But  I  did  not  wish  to  make  or  to 
have  any  controversy  with  any  one  respecting  its  application.  At 
the  same  time,  I  thought  I  had  a  right  to  know,  before  my  own 
opinion  should  be  published  by  the  reporter  in  a  permanent  form, 
whether  any  alterations  material  to  my  dissent  had  been  made  in 
the  opinion  from  which  1  dissented,  after  its  promulgation  from 
the  bench. 

I  had  no  doubt  then,  and  have  none  now,  that  in  publishing  my 
opinion  in  a  permanent  form  in  the  reports,  either  as  it  was  origi 
nally  written,  or  with  such  notes  or  alterations  as  circumstances 
growing  out  of  changes  in  the  opinion  of  the  court  might  require, 
I  was  discharging  an  official  duty ;  and  that  I  had  a  right  to 
have  free  access  to  the  records  of  the  court,  to  enable  me  to  per 
form  it  in  such  manner  as,  on  my  own  responsibility,  I  should 
elect. 

In  respect  to  the  order  to  which  you  refer,  I  may  be  in  error, 
but  at  present  I  do  not  perceive  how  the  court  could  make  an 
order  in  vacation,  without  allowing  to  all  the  judges  opportunity 
to  deliberate  on  it,  and  concur  therein,  or  offer  reasons  why  it 
should  riot  be  passed.  If  consulted,  I  should  have  urged  on  the 
judges,  to  the  best  of  my  ability,  the  propriety  and  expediency  of 
not  withholding  from  immediate  publication  the  opinions  in  this 
case  ;  that  their  publication  would  prevent,  in  the  only  way  in 
which  they  could  be  prevented,  those  great  misunderstandings  and 
gross  misrepresentations  in  the  newspapers,  which  are  mentioned 
in  your  letter  to  Mr.  Carroll  prohibiting  the  allowance  of  a  copy 
of  the  opinion  of  the  court.  I  am  not  able  to  perceive  how  the 
allowance  of  an  authentic  copy  of  the  opinion,  by  the  clerk,  could 
have  had  any  other  effect  than  to  correct  misapprehensions,  and 
put  an  end  to  misrepresentations.  It  was  for  this  reason,  not 


220  MEMOIR   OF   BENJAMIN  ROBBINS   CUKTIS.  [1857. 

only  entertained  but  expressed  at  the  time,  that  I  consented  to  the 
publication  of  my  own  opinion ;  and  when  I  left  Washington, 
though,  from  illness  and  the  pressure  of  my  domestic  affairs,  I  had 
not  opportunity  to  see  you,  I  had  not  the  least  doubt  that  every 
opinion  filed  in  the  case  would  immediately  appear  in  the  news 
papers.  I  supposed  that  others  would  think  as  I  did,  that  in  our 
country  it  is  impossible  to  keep  from  the  public  what  passes  in  an 
open  court  of  justice ;  especially  in  the  Supreme  Court,  where  the 
interests  of  the  nation  are  discussed,  and  the  people  have  the  right 
to  know  what  is  done,  and  feel  a  strong  desire  to  know  it ;  that  in 
such  a  case  the  usual  forms  of  reporting  would  inevitably  be  dis 
regarded  ;  that  if  the  public  cannot  get  the  opinions  of  the  court 
authentically,  and  in  the  usual  way,  speedily  enough  to  answer  their 
claims,  they  will  get  them  so  far  as,  and  in  the  best  way,  they  can ; 
that  in  England,  if  any  similarly  important  case  had  occurred,  a 
detailed  report  of  every  opinion,  which  the  usages  of  that  country 
require  to  be  pronounced  from  the  bench  by  each  judge,  would 
have  appeared  the  next  morning  in  the  leading  newspapers;  that 
in  our  country  there  was  the  same  desire  and  the  same  right  to 
know  what  is  done  in  the  courts,  but  not  the  same  means  at  pres 
ent  to  know  accurately  ;  but  that  all  concerned  would  suffer  by  at 
tempting  to  withhold  the  opinions  in  this  case  after  they  had  been 
regularly  promulgated  in  open  court ;  and  I  may  add,  that  it  is 
quite  usual  in  Massachusetts,  and  I  believe  in  other  States,  to  pub 
lish  immediately  in  the  newspapers  important  opinions  of  the  Su 
preme  Court,  without  waiting  for  the  volume  of  the  reporter ;  and 
that  the  same  practice  was  allowed  by  both  my  predecessors  in 
office,  arid  has  been  occasionally  by  myself. 

I  do  not  detail  these  considerations  to  endeavor  to  convince  you 
that  the  order  was  erroneous.  I  have  not  the  presumption  to  form 
an  opinion  upon  your  act  without  knowing  its  reasons.  But  I  wish 
you  to  understand  my  views  of  the  matter  and  the  grounds  on 
which  I  acted. 

I  feel  a  very  sincere  reluctance  to  trouble  you  with  this  long 
letter,  but  I  know  not  how  to  avoid  it.  I  have  no  personal  feeling 
to  express  other  than  regret  that  what  I  consider  my  rightful  ac 
cess  to  the  records  of  the  court  has  been  denied  me,  and,  as  I  fear, 
under  misconstruction  of  my  motives  and  purposes. 

With  great  respect,  I  am,  dear  sir,  your  obedient  servant, 

B.  R.  CURTIS. 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.        221 

After  the  lapse  of  several  weeks,  Judge  Taney  replied  as 
follows :  — 

To  HON.  B.  R.  CURTIS,  PITTSFIELD. 

WASHINGTON,  June  11,  1857. 

DEAR  SIR,  —  I  received  your  letter  of  the  12th  of  May,  the 
day  before  I  set  out  for  Richmond  to  hold  the  Circuit  Court  for 
the  District  of  Virginia.  And  being  much  occupied  in  my  prepara 
tions  to  leave  home,  I  was  able  to  give  it  but  a  cursory  perusal  at 
that  time  ;  and  while  I  was  at  Richmond,  my  duties  in  court  filled 
up  all  the  time  that  in  my  infirm  state  of  health  I  could  devote  to 
business,  and  left  me  no  leisure  to  answer  your  letter. 

Since  my  return  home,  I  have  again  looked  over  it ;  and  as  I 
have  no  desire  to  continue  the  unpleasant  correspondence  which 
you  have  been  pleased  to  commence,  I  should  have  been  glad  to 
find  that  there  was  nothing  in  your  last  letter  which  called  for  a 
reply  on  my  part. 

But  there  are  some  passages  which  cannot  be  passed  by  without 
notice,  because  my  silence  in  relation  to  them  might  lead  to  erro 
neous  inferences,  unjust  to  the  judges  with  whom  I  concurred  in 
opinion,  as  well  as  to  myself. 

You  say  that  you  were  informed,  after  you  returned  home,  that 
the  opinion  of  the  court,  in  the  case  of  Scott  v.  Sandford,  was 
materially  altered  after  it  was  delivered  from  the  bench.  I  do  not 
mean  to  inquire  through  what  channel  you  sought  or  obtained 
information  on  that  subject.  But  however  obtained,  if  it  came  to 
you  in  a  way  sufficiently  authentic  to  induce  you  to  act  upon  it, 
perhaps  the  more  usual  and  appropriate  course  between  members 
of  the  same  tribunal  would  have  been  to  address  an  inquiry  to  the 
judge  who  delivered  the  opinion.  And  if  this  had  been  done  in 
the  present  case,  you  would  have  been  promptly  and  frankly 
answered.  But  as  you  now,  for  the  first  time,  inform  me  that  this 
information  induced  you  to  address  your  letter  to  me  demanding  a 
copy,  it  is  proper  to  say  that  it  had  no  foundation  in  truth.  There 
is  not  one  historical  fact,  nor  one  principle  of  constitutional  law,  or 
common  law,  or  chancery  law,  or  statute  law,  in  the  printed  opinion, 
which  was  not  distinctly  announced  and  maintained  from  the  bench  ; 
nor  is  there  any  one  historical  fact,  or  principle,  or  point  of  law, 
which  was  affirmed  in  the  opinion  from  the  bench,  omitted  or  modi 
fied,  or  in  any  degree  altered,  in  the  printed  opinion.  You  will 


222  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

find  in  it  proofs  and  authorities  to  maintain  the  truth  of  the  histori 
cal  facts  and  principles  of  law  asserted  by  the  court  in  the  opinion 
delivered  from  the  bench,  but  which  were  denied  in  the  dissenting 
opinions.  And  until  the  court  heard  them  denied,  it  had  not 
thought  it  necessary  to  refer  to  proofs  and  authorities  to  support 
them ;  regarding  the  historical  facts  and  principles  of  law  which 
were  stated  in  the  opinion  as  too  well  established  to  be  open  to  dis 
pute.  But  you  will  find  nothing  altered,  nothing  in  addition  but 
proofs  to  maintain  the  truth  of  what  was  announced  and  affirmed 
in  the  opinion  delivered. 

There  is  another  topic  in  your  letter  upon  which  I  ought  not  to 
be  silent.  You  speak  of  the  opinion  of  the  court  as  having  been 
improperly  kept  back  from  the  public  when  they  had  a  right  to 
know  it.  It  is  true  that  the  opinion  was  not  given  to  a  partisan, 
political  journal,  to  be  published  for  political  and  partisan  purposes. 
But  it  was  delivered  in  open  court,  in  the  hearing  of  every  one  who 
chose  to  listen.  It  was  placed  in  the  hands  of  the  officer  appointed 
by  law  to  report  it,  as  soon  as  it  had  undergone  the  usual  revision. 
And  it  has  been  published  in  the  manner  in  which  the  opinions  of 
the  court  have  been  published  for  more  than  fifty  years  ;  and  much 
sooner  after  the  close  of  the  term  than  they  have  commonly  been 
issued  by  the  reporter.  Yet  I  have  never  heretofore  heard  the 
court  charged  with  improperly  keeping  back  its  opinion  from  the 
people. 

It  is  also  true,  as  you  say,  that  the  constitutional  questions  de 
cided  by  the  court  in  this  case  were  at  the  time,  and  still  are,  the 
subjects  of  earnest  discussion  as  political  questions,  and  the  public 
mind  much  excited  about  them.  But  this  has  often  happened 
before ;  and  whole  States  have  been  highly  agitated  upon  constitu 
tional  questions  of  the  deepest  interest,  at  the  very  moment  when 
they  were  brought  before  the  Supreme  Court  and  there  decided. 
And  it  has  happened,  too.  on  such  occasions,  that  differences  of 
opinion  existed  among  the  members  of  the  court,  and  the  opinion 
of  the  majority  has  been  elaborately  contested  and  freely  com 
mented  on  by  the  dissenting  members  ;  and  it  has  likewise  happened 
in  such  cases  that  the  opinion  of  the  majority,  after  it  was  pro 
nounced,  was  vehemently  assailed  and  misunderstood  and  misrepre 
sented  in  the  political  newspapers  and  journals  of  the  day;  —  yet 
it  was  never  deemed  necessary,  on  that  account,  to  depart  from 
the  usual  and  established  mode  of  promulgating  the  opinion  of  the 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.         223 

court,  nor  the  opinion  of  any  one  of  the  dissenting  judges.  The 
majority  who  concurred  in  and  gave  the  opinion,  and  the  judges  who 
dissented,  were  all  of  them  content  that  their  respective  opinions 
should  be  reported  and  published  in  the  usual  manner,  arid  sub 
mitted  at  the  same  time,  and  in  the  same  volume,  to  the  sober  and 
enlightened  judgment  of  the  public  ;  so  that  each  opinion  might 
speak  for  itself  and  be  compared  witli  the  others  when  it  was  read. 
And  although  this  has  heretofore  been  the  uniform  course  of  pro 
ceeding,  I  have  never  heard  the  court  or  the  dissenting  judges 
accused  of  improperly  keeping  back  their  opinions  from  the 
public. 

And'if  you  supposed  there  was  any  thing  new  and  peculiar  to 
this  case  which  made  it  proper  to  depart  from  the  established 
usage,  and  to  publish  the  opinion  in  the  public  journals  immediately 
after  it  was  delivered,  it  is  to  be  regretted  that  you  did  not  suggest 
such  a  measure  to  the  court.  A  proposition  of  that  kind  coming 
from  one  of  its  members,  his  reasons  for  it  would  undoubtedly  have 
been  respectfully  listened  to  and  considered.  And  if  the  majority 
had  come  to  the  same  conclusion,  directions  could  have  been  given 
to  the  official  reporter  to  carry  the  plan  into  execution.  In  that 
case  a  copy  of  the  opinion  of  the  court  and  of  the  judges  who  con 
curred  in  it,  as  well  as  of  those  who  dissented,  might  have  been 
prepared  and  ready  for  the  press  as  soon  as  the  judgment  was 
pronounced  ;  and  all  of  the  opinions  would  have  appeared  simulta 
neously  and  together,  so  that  he  who  read  one  would  have  the 
others  before  him,  and  be  able  to  compare  them  together,  and  not 
be  left  to  form  his  judgment  of  the  one  from  what  might  be  said  of 
it  in  another  and  adverse  opinion. 

But  the  measures  taken  by  you  effectually  prevented  the  publi 
cation  of  the  opinions  together  or  simultaneously.  You  never 
suggested  (at  least  I  never  heard  of  such  a  suggestion)  that  you 
thought  the  established  mode  of  reporting  and  publishing  the  opin 
ion  of  the  court  ought,  in  this  instance,  to  be  departed  from.  And 
although  I  received  a  note  from  you  in  relation  to  the  law  library 
the  day  after  the  opinions  had  been  delivered,  and  the  day  before 
you  left  Washington,  you  said  nothing  in  it  about  the  publication 
of  the  opinions,  nor  intimated  that  a  more  prompt  and  different 
mode  of  publication  than  the  usual  one  was  desirable.  Nor  did  you 
apprise  me  of  your  intention  to  publish  at  once  your  dissenting 
opinion.  And  I  learned  with  great  surprise  that,  immediately  on 


224  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

your  return  to  Boston,  you  had  published  it  in  a  political  journal, 
and  that  it  was  distributed,  not  only  to  the  subscribers  to  the  news 
paper,  but  widely  circulated  throughout  the  country.  You  your 
self,  therefore,  rendered  it  impossible  that  the  opinions  could  come 
out  together,  as  you  say  would  have  been  the  case  in  England ;  and 
equally  impossible  that  the  readers  of  one  should  have  the  other 
always  at  hand  in  order  to  compare  them  and  judge  between  them ; 
for  the  thousands,  and  tens  of  thousands,  of  persons  who  read  your 
opinion  in  the  journal  in  which  it  was  published,  and  in  other  news 
papers  associated  with  it  in  political  partisanship,  could  by  no  possi 
bility  have  the  opinion  of  the  court  before  them  until  some  time 
after  yours  had  been  read,  and  made  its  impression.  And  the  far 
greater  part  of  the  readers  among  whom  it  was  hurried  and  pro 
fusely  scattered  will  never  have  an  opportunity  of  reading  the  opin 
ion  of  the  court,  nor  of  knowing  any  thing  about  it  except  what 
they  learn  from  your  version  of  the  opinion,  and  your  account  of 
the  proofs  and  authorities  on  which  it  is  founded. 

In  this  respect  the  case  undoubtedly  differed  from  all  former 
ones  ;  and  for  that  reason  made  it  the  duty  of  the  court  to  con 
sider  whether  this  new  state  of  things  required  a  more  prompt  or 
different  mode  of  publication  from  the  one  heretofore  adopted. 
For  although,  as  I  have  already  said,  the  opinion  of  the  court  on 
former  occasions  has  been  assailed  in  political  journals  and  by  politi 
cal  partisans  before  the  opinion  itself  could  be  published,  yet  this 
is  the  first  instance  in  the  history  of  the  Supreme  Court  in  which 
the  assault  was  commenced  by  the  publication  of  the  opinion  of  a 
dissenting  judge ;  carrying  with  it  the  weight  and  influence  of  a 
judicial  opinion  delivered  from  the  bench  in  the  presence  and  hear 
ing  of  the  court. 

No  one  could  fail  to  see  that  this  circumstance  would  encourage 
attacks  upon  the  court  and  upon  the  judges  who  gave  the  opinion, 
by  political  partisans  whose  prejudices  and  passions  were  already 
enlisted  against  the  constitutional  principles  affirmed  by  the  court ; 
and  that  the  usual  weapons  of  party  warfare  would  be  resorted  to 
in  order  to  impair  its  weight ;  and  that  this  would  more  especially 
be  the  case  in  this  instance,  because  the  annual  elections  in  several 
States  were  at  that  time  approaching,  and  the  principal  points  in 
controversy  between  parties  were  the  constitutional  questions  de 
cided  by  the  court.  Yet  the  judges  who  concurred  in  the  opinion 
did  not  think  that  this  state  of  things  would  justify  the  Supreme 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.        225 

Court  of  the  United  States  in  assuming  the  attitude  of  combatants 
in  the  political  arena,  by  publishing  its  opinion  hastily  in  the  public 
journals.  And  the  fact  that  the  public  mind  had  become  highly 
agitated  in  several  States  upon  these  questions  by  the  near  ap 
proach  of  their  elections,  seemed  to  render  any  departure  from  the 
long-established  practice  of  the  court  at  such  a  time  peculiarly  ob 
jectionable.  Hence  the  order  of  which  you  complain,  and  which 
you  represent  as  having  kept  back  from  the  people  what  they  had 
a  right  to  have.  The  order  prevented  the  court  from  being  placed 
in  the  attitude  of  a  combatant  in  the  political  arena  without  its  con 
sent,  but  it  did  nothing  more. 

You  complain  also,  that  you  were  not  consulted  when  the  court 
came  to  this  conclusion,  and  say  that  it  was  a  violation  of  your 
judicial  rights,  as  a  member  of  the  tribunal,  to  pass  the  order  with 
out  first  advising  with  you.  But  you  will  recollect  that  you  had 
then  published  your  own  opinion,  adverse  to  that  of  the  court,  with 
out  consulting  the  judges  who  gave  the  opinion,  or  apprising  them 
of  your  intention  ;  and  I  cannot  see  any  just  ground  upon  which 
you  could  claim  the  right  to  share  in  the  control  and  disposition  of 
the  opinion  of  the  court,  when  the  avowed  object  of  your  dissent 
ing  opinion  was  to  impair  its  authority  and  discredit  it  as  a  judicial 
decision. 

I  have  now  done.  I  had,  indeed,  supposed  that,  whatever  differ 
ence  existed  on  the  bench,  all  discussion  and  controversy  between 
members  of  the  tribunal  was  at  an  end  when  the  opinions  had  been 
delivered  ;  and  I  believed  that  this  case,  like  all  others  that  had 
preceded  it,  would  be  s-ubmitted  calmly  to  the  sober  and  enlight 
ened  judgment  of  the  public  in  the  usual  channels  of  information, 
and  in  the  manner  in  which  it  has  heretofore  been  thought  that 
judicial  decorum  and  propriety  required.  But  if  it  is  your  pleas 
ure  to  address  letters  to  me  charging  me  with  breaches  of  official 
duty,  justice  to  myself,  as  well  as  to  those  members  of  the  court 
with  whom  I  acted,  makes  it  necessary  for  me  to  answer  and  show 
the  charges  to  be  groundless ;  and  a  plain  and  direct  statement  of 
the  facts  appears  to  be  all  that  is  necessary  for  that  purpose.  And 
having  now  made  it,  I  have  only  to  add  that 

I  am,  respectfully,  your  obedient  servant, 

R.  B.  TANEY. 

VOL.    I.  15 


226  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          11857. 

To  this  letter  Judge  Curtis  replied  as  follows :  — 

To  HON.  ROGER  B.  TANEY, 

Chief  Justice  Supreme  Court  of  the  United  States. 

PITTSFIELD,  June  16,  1857. 

DEAR  SIR,  —  Your  letter  of  the  llth  instant  was  received  by 
me  this  morning.  I  read  it  with  surprise.  I  did  not  suppose  I  had 
expressed  myself  in  such  manner  as  to  be  open  to  the  misappre 
hensions  your  letter  shows. 

You  say,  "  I  have  no  desire  to  continue  the  unpleasant  corre 
spondence  you  have  been  pleased  to  commence."  It  is  certain  that 
our  correspondence  has  become  unpleasant;  but  I  do  not^find,  bj 
reviewing  it,  that  it  began  to  be  so  by  any  act  of  mine. 

In  my  first  letter  to  you,  I  simply  requested  you  to  remove  from 
the  mind  of  the  clerk  what  I  then  thought  was  some  misapprehen 
sion  on  his  part.  I  wrote  the  letter  without  expectation  that  any 
thing  unpleasant  would  grow  out  of  it. 

You  speak  of  it  as  "  a  demand  made  on  you  for  a  copy  of  the 
opinion  of  the  court."  It  was  riot  so  intended,  and  no  circum 
stances  were  known  to  me  which  could  impress  on  the  letter  that 
or  any  other  unpleasant  construction.  It  was  not  until  I  received 
your  letter  of  the  28th  of  April  that  any  thing  unpleasant  was 
apparent.  I  cannot  admit,  therefore,  that  I  have  begun  such  a 
correspondence. 

You  speak  of  my  addressing  letters  to  you,  charging  you  with 
breaches  of  official  duty.  I  do  not  know  where  you  find  such 
charges.  The  only  subjects  you  refer  to  specifically  enough  to 
enable  me  to  perceive  what  you  had  in  your  mind  are,  that  I  com 
plain  of  the  order  to  the  clerk  prohibiting  a  copy  of  the  opinion, 
and  that  I  speak  of  this  opinion  having  been  improperly  kept  back 
from  the  public. 

But  if  you  will  recur  to  my  letter,  you  will  find  that,  so  far  from 
charging  you  with  any  official  misconduct  in  passing  the  order,  I 
expressly  say  I  had  not. even  formed  an  opinion  that  it  was  erro 
neous,  because  I  was  not  informed  of  the  reasons  which  induced  its 
passage. 

I  do  state  reasons  which  would  have  induced  me,  if  consulted, 
to  favor  the  immediate  publication  of  all  the  opinions ;  and  after 
carefully  considering  what  you  have  said  in  your  last  letter  on  that 
subject,  though  I  never  supposed  any  one  or  more  of  the  judges 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.         227 

should  do  any  thing  as  a  partisan,  yet  I  still  think  it  was  highly 
inexpedient  to  restrain  others  from  publishing  the  opinion  of  the 
court. 

But,  surely,  there  is  a  wide  distance  between  a  difference  of 
opinion  on  a  question  like  this,  and  a  charge  of  official  misconduct. 
I  must  be  allowed  to  entertain  my  own  opinions  on  all  points  con 
nected  with  my  office,  and  to  express  plainly,  on  proper  occasions, 
my  reasons  for  them ;  but  I  claim  no  privilege  to  charge  any  one 
of  my  brethren  with  official  misconduct,  nor  have  I  done  so.  All 
that  I  said  on  the  subject  of  the  publication  of  the  opinion  was  not 
by  way  of  complaint  of  the  order  to  the  clerk.  I  stated  that  such 
was  not  my  purpose ;  and  that  my  purpose  was  solely  to  explain  to 
you  the  grounds  on  which  I  acted  and  assumed  (erroneously,  it 
appears)  that  others  would  act,  —  not  to  controvert  the  propriety 
of  the  order  so  far  as  its  purpose  was  to  restrain  the  publication  of 
the  opinion  of  the  court.  I  did  not  then,  nor  have  I  at  any  time, 
considered  that  I  had  a  right  to  a  voice  on  the  question  whether 
the  majority  of  the  judges  would  allow  their  opinion  to  be  pub 
lished  otherwise  than  by  the  reporter.  So  far  as  it  was  the  pur 
pose  of  that  order  to  prevent  a  publication  of  that  document, 
though  I  must  be  allowed  to  entertain  my  own  views  upon  the 
question  of  expediency,  I  have  never  had  any  cause  to  complain, 
and  never  have  complained,  that  they  who  had  a  right  to  decide 
thought  differently  from  myself.  What  I  complained  of  was  the 
assumption  that  I  wanted  a  copy  of  the  opinion  for  publication, 
and  not  to  enable  me  to  discharge  an  official  duty;  and  the  applica 
tion  of  this  order  to  restrain  me  from  having  a  copy  of  this  docu 
ment,  when  I  did  actually  want  it  to  enable  me  to  discharge  an 
official  duty.  If  I  was  otherwise  understood,  I  regret  that  I  did 
not  express  my  ideas  more  clearly. 

You  describe  to  me,  in  your  last  letter,  the  extent  of  the  alter 
ations  made  in  the  opinion  of  the  court  after  it  was  delivered,  and 
you  intimate  I  might  have  had  this  information  earlier. 

I  feel  no  hesitation  in  leaving  it  to  your  own  candor  to  judge 
whether,  if  I  had  received  this  information  earlier,  it  would  have 
prevented  my  reasonable  wishes  to  see  the  document  itself,  that  I 
might  know  what  were  "  the  proofs  and  authorities  to  maintain  the 
truth  of  the  historical  facts  and  principles  of  law  asserted  by  the 
court,  in  the  opinion  of  the  court  delivered  from  the  bench,"  which 
you  say  were  afterwards  added  to  the  opinion ;  since  it  must  be 


228  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857. 

admitted  that  these  terms  may  embrace  a  wide  field  of  examination 
and  argument. 

A  large  part  of  your  letter  seems  designed  to  show  that  I  pub 
lished  my  opinion  for  political  and  partisan  purposes,  and  that  I 
could  not  have  failed  to  see  that  it  must  be  read  by  great  numbers 
of  persons  who  would  never  read  the  opinion  of  the  court,  and 
thus  have  an  unfair  effect. 

I  shall  not  yield  to  the  desire  I  feel  to  reply  at  length  to  this 
part  of  your  letter,  and  this  for  two  reasons :  the  first  is,  that  to 
carry  on  such  a  discussion  without  bitterness  would  seem  to  be 
almost,  if  not  quite,  impossible,  —  and  therefore  I  do  not  think  it 
would  be  profitable  either  to  you  or  myself;  the  second  is,  that  I 
do  not  deem  a  detailed  reply  to  those  parts  of  your  letter  necessary. 
It  is  a  sufficient  reply  for  me  to  declare  that  I  have  no  connection 
whatever  with  any  political  party,  and  have  no  political  or  partisan 
purpose  in  view,  and  no  purpose  whatever,  save  a  determination  to 
avoid  misconstruction  and  misapprehension,  from  which  I  have  suf 
fered  enough  in  times  past. 

I  had  not  the  least  doubt,  when  I  consented  to  the  publication  of 
my  own  opinion,  that  the  opinion  of  the  court  would  be  at  once 
published  in  a  similar  way,  and  would  appear  as  early  as  my  own, 
in  the  principal  newspapers  of  the  country ;  as  it  undoubtedly 
would  have  done,  if  its  publication  had  not  been  prevented  by  a  spe 
cial  order.  But  the  fact  that  its  publication  without  my  knowledge 
was  restrained,  or  that  it  was  not  ready  for  publication  when  deliv 
ered,  if  such  was  the  fact,  does  not  authorize  any  one  to  impute  to 
me  intentional  unfairness,  or  any  willingness  to  do  the  least  injus 
tice  to  the  reputation  of  others. 

Being  conscious  of  the  truth  of  these  facts,  I  deem  them  a  suffi 
cient  reply  to  that  part  of  your  letter,  and  have  only  to  add,  that  I 
remain,  Respectfully,  your  obedient  servant, 

B.  R.  CURTIS. 

Chief  Justice  Taney  replied  as  follows :  — 

WASHINGTON,  June  20,  1857. 

DEAR  SIR,  —  I  received  your  letter  of  the  16th  instant  this 
morning,  and  am  glad  to  find  that  there  is  nothing  in  it  that  requires 
me  to  do  more  than  acknowledge  its  receipt,  and  to  say  that  I  am 
not  aware  of  any  thing  in  either  of  my  letters  that  is  not  strictly 
defensive  in  its  character.  The  acts  of  no  other  person  are  alluded 


1857.]      CORRESPONDENCE  WITH  THE  CHIEF  JUSTICE.         229 

to  in  either  of  them  further  than  was  necessary  to  show  the  circum 
stances  under  which  I,  and  those  with  whom  I  concurred,  have 
acted,  and  the  motives  which  induced  us  to  adopt  the  course  we 
have  pursued. 

I  am,  respectfully,  your  obedient  servant, 

R.  B.  TANEY. 

The  above  letter  closed  the  correspondence.  Judge  Cur 
tis  filed  the  letters  among  his  private  papers,  with  the 
following  careful  and  deliberate  summing  up  of  the  whole 
matter,  in  his  own  handwriting,  entitled,  — 

SOME  OBSERVATIONS  ON  THE  ABOVE  CORRESPONDENCE. 

The  42d  rule  of  the  Supreme  Court  contains  the  following 
words :  — 

"  All  the  opinions  delivered  by  the  court  since  the  commencement 
of  the  term  (January  7,  1835)  shall  be  forthwith  delivered  over  to 
the  clerk  to  be  recorded. 

"  And  all  opinions  hereafter  delivered  by  the  court  shall  immedi 
ately  on  the  delivery  thereof  be  in  like  manner  delivered  over  to  the 
clerk  to  be  recorded." 

Instead  of  conforming  to  this  rule,  the  opinion  delivered  by  the 
Chief  Justice  was  retained,  and  many  material  additions  were  made 
to  it.  I  have  marked  in  the  margin  of  my  copy  the  passages  which 
I  believe  to  have  been  thus  inserted.  I  have  no  doubt  of  the  cor 
rectness  of  my  memory  on  this  subject.  I  heard  the  opinion  read 
twice :  once  in  conference,  and  once  from  the  bench.  I  listened  to 
it  with  attention,  and  believe  I  know  where  and  in  what  it  was 
changed.  These  additions  amount  to  upwards  of  eighteen  pages. 
No  one  can  read  them  without  perceiving  that  they  are  in  reply  to 
my  opinion. 

Having  thus  retained  the  opinion  contrary  to  the  rule  of  the 
court,  and  inserted  in  it  without  notice  to  me  what  was  designed  to 
be  a  reply  to  parts  of  my  opinion,  when  I  called  on  the  clerk  for  a 
copy  of  his  record  of  it,  he  was  prohibited  from  furnishing  it  to 
me  ;  and  I  was  thus  deprived  of  all  opportunity  to  see  what  had 
been  inserted  until  the  reporter's  volume  was  issued,  and  it  was  too 
late  to  avail  myself  of  the  knowledge. 

And  when  I  complained  of  this,  instead  of  answering  my  com- 


230  MEMOIR   OF   BENJAMIN  BOBBINS   CUKTIS.  [1857. 

plaint,  an  elaborate  attack  is  made,  after  a  month's  reflection,  upon 
my  motives  in  consenting  to  the  publication  of  my  opinion. 

In  obedience  to  the  rule  of  the  court,  I  delivered  a  copy  of  my 
opinion  to  the  clerk  forthwith  after  it  had  been  read.  It  then 
became  one  of  the  public  records  of  the  country.  Any  citizen  had 
a  right  to  a  copy  of  it,  and  to  print  and  publish  it.  I  desired  to 
have  it  printed  correctly  and  in  full,  arid  took  measures  to  effect 
this.  The  Chief  Justice  withheld  his  opinion,  contrary  to  the  rule, 
and  for  the  purpose  of  altering  it.  The  order  to  the  clerk  not  to 
furnish  a  copy  was  quite  useless  while  there  was  no  original  on  file, 
unless  for  the  purpose  of  concealing  the  fact  that  the  original  was 
retained  to  be  altered.  I  do  not  believe  any  such  order,  wholly  un 
precedented  as  it  was,  would  ever  have  been  passed  if  the  opinion 
had  been  ready  for  publication  when  delivered.  But  whether  this 
be  so  or  not,  the  prohibition  to  give  me  a  copy  after  it  was  com 
pleted  and  delivered  to  the  clerk  to  be  recorded,  was  an  act  of 
usurpation ;  and  the  reason  which  is  insinuated,  but  not  stated,  that 
it  was  conjectured  I  wanted  it  for  publication,  certainly  does  not 
render  the  act  less  offensive. 

My  purpose  in  the  above  correspondence  was  to  place  before 
Judge  Taney  the  true  character  of  his  act,  not  to  enter  into  an 
embittered  controversy  with  him.  I  believe  I  have  accomplished 
this  purpose,  and  that  he  knows  it. 

Although  I  read  this  correspondence  soon  after  it  was 
closed,  and  have  now  thought  it  proper,  in  justice  to 
my  brother's  memory,  to  include  it  in  this  Memoir,  that 
it  may  furnish  its  own  answer  to  some  suggestions  that 
have  been  made  respecting  his  course  in  allowing  an 
immediate  publication  of  his  dissenting  opinion,  I  do 
not  deem  it  necessary  to  add  any  thing  to  the  comments 
which  he  himself  made  upon  it,  and  which  he  left  where 
they  would  be  accessible  after  his  death.  I  believe  that 
those  comments  were  deliberately  made  and  deliberately 
preserved.  I  ought,  however,  to  say  that  my  brother 
had  as  high  an  appreciation  of  the  judicial  character 
and  public  services  of  Chief  Justice  Taney  as  any  man 
who  ever  knew  him.  This  is  abundantly  manifested  in 


1857.]  DRED    SCOTT   CASE.  231 

what  he  said  of  the  Chief  Justice,  publicly,  after  his 
decease,  and  which  is  included  in  the  present  work. 
Upon  that  eulogium  I  shall  only  say  that  Judge  Curtis 
never  spoke  of  any  man,  living  or  dead,  otherwise  than 
as  he  felt.1 

The  dissenting  opinion  of  Judge  Curtis,  in  this  case,  was 
greatly  praised  throughout  the  Northern  States,  for  the 
clear,  learned,  and  able  manner  in  which  it  maintained  the 
capacity  of  free  persons  of  color  to  be  "  citizens  "  within 
the  meaning  of  the  Judiciary  Act,  and  for  the  power  with 
which  he  asserted  the  authority  of  Congress  to  exclude 
slavery  from  the  Territories.  These  were  the  topics  that 
most  deeply  interested  the  public  mind  at  that  time ;  and 
it  so  happened  that  his  view  of  his  judicial  duty,  under 
the  requirements  of  the  case,  made  it  necessary  for  him 
to  discuss  them.  But  the  practical  importance  of  these 
questions  has  passed  away.  What  then  remains  of  this 
dissenting  opinion,  as  of  lasting  value  in  the  national  juris 
prudence?  In  my  judgment,  its  permanent  importance 
consists  in  the  demonstration  which  it  made  of  this  propo 
sition  :  —  That  the  Supreme  Court  of  the  United  States, 
sitting  as  an  appellate  tribunal  to  correct  the  errors  of  a 
Circuit  Court,  cannot,  under  a  plea  to  the  jurisdiction, 
decide  that  the  lower  court  had  no  jurisdiction  to  hear  and 
determine  the  cause,  and  then  proceed  to  decide  a  question 
of  constitutional  law  which  arises  only  on  a  plea  in  bar  to 
the  merits  of  the  action.  The  following  impressive  close  of 
Judge  Curtis's  discussion  of  this  part  of  the  subject  com 
prehends  the  whole  substance  of  his  objection  to  the  course 
of  a  majority  of  his  brethren:  "I  do  not  consider  it  to  be 
within  the  scope  of  the  judicial  power  of  the  majority  of 
the  court  to  pass  upon  any  question  respecting  the  plaintiff's 
citizenship  in  Missouri,  save  that  raised  by  the  plea  to  the 

1  See  the  remarks  of  Judge  Curtis  at  the  meeting  of  the  Boston  Bar, 
occasioned  by  the  death  of  Chief  Justice  Taney,  infra,  Vol.  II. 


232  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

jurisdiction  ;  and  I  do  not  hold  any  opinion  of  tins  court, 
or  any  court,  binding,  when  expressed  on  a  question  not 
legitimately  before  it.  The  judgment  of  this  court  is,  that 
the  case  is  to  be  dismissed  for  want  of  jurisdiction,  because 
the  plaintiff  was  not  a  citizen  of  Missouri,  as  he  alleged 
[that  he  was]  in  his  declaration.  Into  that  judgment, 
according  to  the  settled  course  of  this  court,  nothing  ap 
pearing  after  a  plea  to  the  merits  can  enter.  A  great 
question  of  constitutional  law,  deeply  affecting  the  peace 
and  welfare  of  the  country,  is  not,  in  my  opinion,  a  fit  sub 
ject  to  be  thus  reached." 

To  those  who  do  not  fully  appreciate  the  judicial  func 
tions  of  the  Supreme  Court  of  the  United  States,  or  who 
do  not  fully  understand  the  limits  within  which  it  should 
carefully  act,  this  may  seem  to  have  been  hypercritical  in 
its  technicality.  But  to  the  instructed  and  enlightened 
student  of  our  national  jurisprudence,  who  contemplates 
the  true  function  of  the  Supreme  Court  as  the  judicial 
arbiter  of  constitutional  questions,  these  apparent  techni 
calities  will  be  recognized  as  pregnant  with  most  important 
substance  ;  for  it  cannot  be  doubted,  that  the  temptation 
to  be  drawn  into  the  expression  of  opinions  on  constitu 
tional  questions,  because  they  are  entering  into  the  politics 
of  the  time,  is  one  against  which  that  court  should  be 
hedged  by  the  strict  and  logical  order  of  judicial  action, 
which  can  alone  produce  a  judicial,  and  therefore  a  bind 
ing  determination. 

From  among  the  numerous  letters  addressed  to  Judge 
Curtis  by  individuals  in  widely  separated  quarters  of  the 
Union,  respecting  this  dissenting  opinion,  I  shall  select 
two  only ;  and  I  select  them  because  they  were  written  by 
persons  of  eminence  in  the  legal  profession,  who  might  be 
considered  as  representatives  of  different  sections  of  the 
Union. 


1857.]  DEED   SCOTT   CASE.  233 


FROM  JUDGE  THOMAS. 

COURT  HOUSED  BOSTON,  March  18,  1857. 

MY  DEAR  JUDGE,  —  Let  me  thank  you  for  your  opinion  in 
Scott  in  Error  v.  Sandford.  It  seems  to  me  to  exhaust  the  sub 
ject.  The  manner  and  matter  are  alike  admirable.  The  tone  is 
firm,  the  learning  thorough,  the  logic  quiet  but  inexorable.  A 
great  occasion,  well  used  for  your  own  judicial  fame,  and  for  the 
vindication  of  the  Constitution  from  the  reproach  of  imbecility  and 
inhumanity,  which  these  new  prophets  bring  upon  it. 

Very  truly  yours,  BENJAMIN  F.  THOMAS. 

FROM  MR.  PETTIGRU. 

CHARLESTON,  S.  C.,  March  24,  1857. 

DEAR  SIR, —  I  received  last  evening  a  copy  of  the  Courier 
containing  your  judgment  in  Scott's  case,  for  which  I  presume  I 
am  indebted  to  you,  and  I  thank  you  for  the  attention.  I  went 
through  it  last  night,  with  great  interest,  notwithstanding  its 
length.  I  am  not  quite  satisfied  with  the  disposal  of  the  plea  to 
the  jurisdiction  which  you  place  on  the  insufficiency  of  the  plea  in 
abatement.  That  the  plea  was  bad  seems  clear  enough  ;  but  I  am 
not  so  well  satisfied  that  the  court  ought  to  take  jurisdiction  because 
the  defendant  does  not  know  how  to  plead,  —  i.  e.  to  argue  logically. 
I  have  riot  seen  the  opinions  of  the  Chief  Justice  and  his  adherents, 
and  am  therefore  bound  in  duty  to  reserve  judgment  till  I  have 
heard  both  sides ;  but  so  far  I  agree  with  you  on  both  points, 
that  a  colored  man  may  be  a  citizen,  and  that  the  Missouri  Com 
promise  is  constitutional  ;  and  [I]  think  further,  that  it  was  the 
most  equitable,  and  indeed  the  only  fair,  way  of  settling  the  rival 
claims  of  North  and  South  upon  the  Territory. 

The  reserve  with  which  you  have  kept  free  from  the  political 
questions  that  give  the  case  such  painful  interest,  cannot  be  too 
much  applauded,  arid  I  wish  that  the  example  may  be  followed  as 
generally  as  it  deserves  universally  to  be  commended.2 

Yours  truly,  J.  L.  PETTIGRU. 

1  Judge  Thomas  was  at  this  time  one  of  the  judges  of  the  Supreme 
Judicial  Court  of  Massachusetts. 

2  The  residue  of  this  letter  related  entirely  to  another  subject. 


234        MEMOIR  OF  BENJAMIN  BOBBINS  CURTIS.        [1857. 

NOTE  ON  THE  DKED  SCOTT  CASE. 

I  deem  it  proper  to  say,  in  reference  to  the  active  exer 
tions  of  Judge  Wayne  to  bring  about  a  change  in  the  de 
termination  of  the  court  in  regard  to  the  final  disposal  of  the 
case  of  Dred  Scott,  after  the  second  argument,  that  neither 
he  nor  Judge  Grier  was  at  all  reticent  on  the  subject,  and 
that  on  the  day  when  the  vote  was  adopted  by  a  majority 
of  the  judges,  in  conference,  to  set  aside  the  opinion  which 
had  been  prepared  by  Judge  Nelson,  and  to  have  the  con 
stitutional  validity  of  the  Missouri  restriction  acted  upon 
and  denied,  Judge  Wayne  spoke  of  the  result  as  an  impor 
tant  achievement  effected  by  himself.  I  have  therefore 
felt  entirely  at  liberty  to  comment  upon  facts  which  be 
came  known,  at  the  time  of  this  occurrence,  without  any 
agency  of  Judge  Curtis.  He  did  not  speak  of  these  occur 
rences  for  many  years,  even  after  he  had  left  the  bench,  ex 
cepting  to  the  members  of  his  own  family,  and  one  or  two 
confidential  friends.  But  the  following  letter,  addressed  to 
my  nephew,  the  editor  of  this  work,  by  the  Hon.  Clement 
Hugh  Hill,  formerly  Assistant  Attorney-General  of  the 
United  States,  shows  that,  shortly  before  his  death,  Judge 
Curtis  spoke  freely  of  what  had  happened  in  this  case. 

BOSTON,  August  5,  1878. 

DEAR  MR.  CURTIS,  —  It  will  afford  me  much  pleasure  to  com 
ply  with  the  request  you  made  me  a  few  days  since,  to  write  out 
my  recollections  of  a  conversation  I  had  with  your  father,  the  win 
ter  before  his  death,  in  regard  to  the  decision  in  the  Dred  Scott 
case,  although  there  must  be  many  of  his  old  friends  living  who 
have  heard  the  same  account  from  him,  and  who  perhaps  recollect 
it  more  fully  than  I  do. 

One  evening  during  the  winter  of  1873-74  (I  think  it  was 
in  December),  I  called  upon  Judge  Curtis,  at  the  Ebbitt  House, 
in  Washington,  and  spent  more  than  an  hour  with  him.  He  was 
in  very  good  spirits  and  full  of  anecdote,  and  among  other  things 
gave  me  an  interesting  inside  history  of  the  Dred  Scott  case.  He 
told  me  that  the  court  had  voted  to  affirm  the  judgment  below,  and 


1857.]  DEED   SCOTT   CASE.  235 

that  Judge  Nelson  prepared,  as  the  opinion  of  the  court,  the  opinion 
he  afterwards  delivered  as  his  individual  judgment.  Judge  Mc 
Lean  and  Judge  Curtis  were  to  dissent,  in  a  brief  opinion,  to  be 
drawn  up,  I  think,  by  Judge  McLean.  I  do  remember  Judge 
Curtis  saying  that,  if  the  case  had  thus  been  disposed  of,  the  opin 
ions  would  have  been  devoid  of  all  the  bitterness  which  the  case 
ultimately  gave  rise  to.  After  this,  it  was  urged  upon  the  court, 
by  Judge  Wayne,  how  very  important  it  was  to  get  rid  of  the 
question  of  slavery  in  the  Territories,  by  a  decision  of  the  Supreme 
Court,  and  that  this  was  a  good  opportunity  of  doing  so.  I  do 
remember  that  Judge  Curtis  said  that  Judge  Wayne  was  instru 
mental  in  bringing  about  what  followed ;  that  he  persuaded  the 
Chief  Justice  to  recall  the  case  from  Judge  Nelson,  and  deliver  the 
opinion  of  the  court  himself  ;  and  he  busied  himself  also  to  persuade 
the  other  judges  to  concur  in  the  Chief  Justice's  opinion,  and  par 
ticularly  suggested  to  Judge  Catron  the  entirely  untenable  ground 
upon  which  he  concurred  in  holding  the  Missouri  Compromise  to  be 
unconstitutional ;  namely,  that  it  conflicted  with  the  treaty  by  which 
France  ceded  Louisiana  to  the  United  States. 

I  take  it  that  all  this  occurred  after  the  second  argument  of  the 
case  alluded  to  by  Judge  Campbell,  in  his  address  on  Judge  Curtis, 
at  the  Bar  meeting  in  Washington.  (See  20  Wallace,  pp.  x.  xi.) 

Such,  to  the  best  of  my  recollection,  is  the  substance  of  what 
your  father  told  me.  I  have  since  regretted  that  I  made  no  note 
of  the  conversation  at  the  time,  as  he  went  into  many  details  which 
have  now  escaped  me.  I  do  not  think,  however,  that  I  have  erred 
in  my  recollection,  in  any  essential  particular. 

I  remain,  with  great  regard,  yours  very  faithfully, 

CLEMENT  HUGH  HILL. 

With  regard  to  the  opinion  prepared  by  Judge  Nelson, 
and  originally  intended  to  be  the  decision  of  a  majority  of 
the  bench,  from  which  Judge  McLean  and  Judge  Curtis 
were  alone  to  have  dissented,  it  has  been  stated  by  Judge 
Campbell  that  it  was  not  read  in  conference  before  another 
disposition  of  the  case  was  moved.1  This  fact  is  not  very 
material,  since  Judge  Campbell  admits  that  Judge  Nelson's 
opinion  was  prepared  by  instruction  of  the  majority,  to  be 

1  Memoir  of  Chief  Justice  Taney,  p.  384. 


236  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [1857. 

read  as  the  opinion  of  the  court,  and  that  it  was,  by  Judge 
Wayne's  suggestion,  set  aside,  and  that  then  the  Chief  Jus 
tice  was  requested  to  write  an  opinion  on  all  the  questions 
in  the  case  as  the  opinion  of  the  majority.  We  have  Judge 
Nelson's  own  authority  for  the  fact  that  the  opinion  which 
he  read  as  his  individual  judgment  in  the  case  was  the  one 
that  he  originally  wrote  as  the  opinion  of  the  court.  In  a 
letter  written  by  him  on  May  13,  1871,  to  the  biographer 
of  the  Chief  Justice,  he  said :  "  I  was  not  present  when 
the  majority  decided  to  change  the  ground  of  the  decision, 
and  assigned  the  preparation  of  the  opinion  to  the  Chief 
Justice ;  and,  when  advised  of  the  change,  I  simply  gave 
notice  that  I  should  read  the  opinion  I  had  prepared  as  my 
own,  and  which  is  the  one  on  file."1  All  that  Judge  Nel 
son  did  to  this  opinion  was  to  prefix  a  short  paragraph  in 
the  first  person,  stating  that  he  read  it  as  his  individual 
judgment.  All  the  residue  of  the  opinion  is  in  the  plural 
"  we." 

The  biographer  of  the  Chief  Justice  has  deemed  it  proper 
to  vindicate  him  from  a  charge  of  complicity  with  Mr. 
Buchanan,  the  incoming  President,  in  regard  to  the  de 
cision  to  be  given  in  this  case.  I  never  heard  Judge  Curtis 
intimate  a  word  that  could  give  countenance  to  this  charge, 
or  impute  to  Judge  Wayne  or  the  Chief  Justice  any  motive 
but  the  mistaken  supposition  that  the  public  excitement  in 
regard  to  slavery  in  the  Territories  could  be  quieted  by  a 
judicial  decision  adverse  to  the  power  of  Congress  to  pro 
hibit  its  introduction.  I  think  that  he  regarded  this  as 
Judge  Wayne's  motive,  and  with  good  reason  ;  and  that  he 
was  satisfied  that  Judge  Wayne  imparted  this  conviction  to 
the  Chief  Justice.  But  I  do  not  think  that  he  ever,  for  an 
instant,  imputed  to  Judge  Wayne  that  he  was  influenced 
by  Mr.  Buchanan  to  do  what  he  did,  nor  do  I  myself  be 
lieve  that  such  was  the  fact.  Indeed,  I  do  not  imagine  that 
Mr.  Buchanan  was  a  man  who  would  tamper  with  the 

1  Memoir  of  Chief  Justice  Taney,  p.  385. 


1857.]  DEED   SCOTT   CASE.  237 

administration  of  justice,  and  I  am  sure  that  the  Chief  Jus 
tice  and  Judge  Wayne  would  never  have  brooked  such  an 
attempt. 

My  learned  friend,  the  late  Hon.  Reverdy  Johnson,  in  a 
letter  of  some  warmth  addressed,  on  the  6th  of  March,  1858, 
to  a  public  meeting  in  Baltimore,  and  from  which  some 
extracts  are  given  in  the  Memoir  of  the  Chief  Justice,  re 
ferring  to  the  mode  in  which  the  constitutional  question  of 
the  power  of  Congress  to  exclude  slavery  from  a  Territory 
was  dealt  with  in  this  case,  said :  — 

But  this  would  seem  to  be  obvious,  that  if  it  was  the  duty  of  the 
dissenting  judges,  Messrs.  McLean  and  Curtis,  to  pass  upon  a  ques 
tion  of  such  importance,  and  to  argue  it  with  unwonted  zeal  and 
rare  ability,  and  with  a  practical  appeal  to  Northern  prepossession 
and  sympathy,  calculated  to  impress  upon  the  public  mind  of  that 
section  a  conviction  of  the  right  of  Congress  to  prohibit  slave  labor 
in  the  Territories  then  or  thereafter  to  belong  to  the  Union,  —  a 
power  so  pregnant  with  danger  to  our  continuance  as  one  people,  — 
it  was  equally  proper  that  the  judges  who  entertained  a  different 
opinion  should  have  expressed  it,  and  maintained  it  with  all  the 
ability  and  research  within  their  power. 

Mr.  Justice  McLean's  opinion  occupies  thirty-five  pages  of  the 
report  in  19  Howard,  and  Mr.  Justice  Curtis's  opinion  one  hun 
dred  and  three.  The  greater  part  of  each  is  devoted  to  this  very 
question,  and  as  to  the  right  to  consider  and  decide  it.  The  last- 
named  judge  concludes  his  with  an  apology  for  its  length  by  saying, 
"  These  questions  are  numerous,  and  the  grave  importance  of  some 
of  them  required  me  to  exhibit  the  grounds  of  my  opinion.  I  have 
treated  no  question  which,  in  the  view  I  have  taken,  it  was  not 
absolutely  necessary  for  me  to  pass  upon,  to  ascertain  whether  the 
judgment  of  the  Circuit  Court  should  stand  or  be  reversed.  I  have 
avoided  no  question  on  which  the  validity  of  that  judgment  de 
pends.  To  have  done  either  more  or  less  would  have  been  incon 
sistent  with  my  sense  of  duty." 

Were  these  two  opinions  to  be  spread,  as  they  were,  with  unex 
ampled  haste,  broadcast  over  the  land,  and  the  rest  of  the  court, 
who  differed  so  widely  and  so  decidedly,  to  remain  silent  ?  Were  they 
by  that  very  silence  to  leave  the  public  to  infer,  as  they  might  then 


238  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1857 

have  fairly  done,  that  they  did  not,  or  were  unable  to,  maintain 
different  doctrine  ?  Assuming,  therefore,  what  is  I  think  palpably 
unsound,  that  the  decision  of  the  court  on  this  question  was  in 
any  sense  extra-judicial,  I  hold  it  to  be  perfectly  clear  that  the 
course  adopted  by  the  dissenting  judges  rendered  it  the  duty  of 
the  court  to  correct,  to  the  whole  extent  of  their  power,  what 
they  believed  to  be  the  serious  constitutional  errors  which  that 
course,  if  left  unobstructed,  was  likely  to  fasten  upon  the  public 
judgment. 

Judge  Curtis  did  not  deem  it  necessary  to  take  any 
notice  of  these  remarks,  made  in  a  letter  to  a  political 
meeting,  however  distinguished  the  writer  might  be  ;  and 
all  that  Mr.  Johnson  said  vanishes  of  course  into  air,  as 
soon  as  it  is  remembered  that  every  word  written  and  read 
by  Judges  McLean  and  Curtis  in  this  case  was  written  and 
read  as  their  dissent  from  an  opinion  of  the  Chief  Justice, 
which  they  had  heard  read  in  conference,  and  that  in  that 
opinion  the  doctrine  was  elaborately  maintained  that  Con 
gress  had  no  constitutional  power  to  exclude  slavery  from 
any  Territory  of  the  United  States.  The  propriety  with 
which  any  member  of  the  bench  could  touch  this  question, 
—  the  test  of  whether  his  views  upon  it  were  judicial  or 
extra-judicial,  —  depended  simply  and  solely  upon  his  be 
lief  that  the  Circuit  Court  had  or  did  not  have  jurisdiction 
on  the  facts  averred  in  the  plea  to  the  jurisdiction.  No 
judge  who  held  on  that  plea  that  a  free  negro  could  not  be  a 
citizen,  could  judicially  promulgate  from  the  bench  an  opin 
ion,  under  the  plea  to  the  merits,  that  the  plaintiff  was  not 
a  freeman  because  Congress  could  not  constitutionally  pro 
hibit  slavery  in  a  Territory  where  he  had  once  resided  with 
his  master's  consent.  Mr.  Johnson  seems  to  imply  that,  even 
if  the  views  expressed  were  extra-judicial,  it  was  proper, 
under  the  circumstances,  that  they  should  be  expressed. 
The  circumstances  do  not  warrant  the  assertion,  nor  do  I 
think  that  the  judgment  of  lawyers  would  sustain  it.  The 
"  unexampled  haste  "  of  which  Mr.  Johnson  spoke,  would 


1857.]  DEED    SCOTT   CASE.  239 

doubtless  have  been  applied  by  the  press  to  the  circulation 
of  the  opinion  of  the  Chief  Justice,  if  it  had  been  accessible 
immediately  after  it  was  delivered  from  the  bench  ;  for 
there  was  great  eagerness  on  the  part  of  the  public  to 
learn  all  that  had  been  said  in  this  interesting  and  excit 
ing  case. 

I  cannot  take  leave  of  this  case  and  its  various  incidents, 
without  expressing  my  regret  that  Chief  Justice  Taney  did 
not  finish  the  autobiography  which  he  began  at  Old  Point 
Comfort,  when  he  was  in  the  seventy-eighth  year  of  his  age. 
The  fragment  of  his  own  life  which  he  then  wrote,  and 
which  has  been  used  in  Mr.  Tyler's  memoir  of  him  pub 
lished  at  Baltimore  in  1872,  is  one  of  the  most  beautiful 
pieces  of  that  kind  of  writing  that  I  know  of  in  the  Eng 
lish  language.  The  late  Chief  Justice  was  master  of  a  sin 
gularly  graceful  and  easy  style,  perfectly  perspicuous  and 
correct;  and  when  he  sat  down  in  his  old  age,  during  a 
vacation  at  the  sea-shore,  to  write  an  account  of  his  own 
life,  he  commenced  a  work  which,  if  he  had  completed  it, 
would  have  been  a  most  valuable  addition  to  our  political, 
juridical,  and  personal  literature.  He  had  lived  and  acted 
in  scenes  of  great  importance  in  our  history,  had  the  means 
of  throwing  much  light  upon  the  motives  and  characters  of 
the  distinguished  persons  with  whom  he  had  been  associated 
in  public  life,  and  as  Chief  Justice  of  the  United  States  for 
a  period  of  more  than  thirty  years,  beginning  with  the  ad 
ministration  of  General  Jackson  arid  coming  down  to  the 
early  years  of  our  civil  war,  he  could  have  told  of  much 
that  it  would  have  been  very  desirable  to  know,  and  he 
would  have  told  it  in  a  charming  way.  What  prevented  his 
completion  of  the  work  which  he  had  so  felicitously  begun, 
we  are  not  informed. 

Nor  can  I  pass  from  the  mention  of  his  name,  without  a 
tribute  of  respect  to  his  public  and  private  virtues.  He 
was  indeed  a  great  magistrate,  and  a  man  of  singular  purity 
of  life  and  character.  That  there  should  have  been  one 


240  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

mistake  in  a  judicial  career  so  long,  so  exalted,  and  so  use 
ful,  is  only  a  proof  of  the  imperfection  of  our  nature.  The 
reputation  of  Chief  Justice  Taney  can  afford  to  have  any 
thing  known  that  he  ever  did,  and  still  leave  a  great  fund 
of  honor  and  praise  to  illustrate  his  name.  If  he  had  never 
done  any  thing  else  that  was  high,  heroic,  and  important, 
his  noble  vindication  of  the  writ  of  habeas  corpus,  and  of 
the  dignity  and  authority  of  his  office,  against  a  rash  min 
ister  of  state,  who,  in  the  pride  of  a  fancied  executive 
power,  came  near  to  the  commission  of  a  great  crime, 
will  command  the  admiration  and  gratitude  of  every  lover 
of  constitutional  liberty,  so  long  as  our  institutions  shall 
endure.1 

I  have  dwelt  thus  long  and  minutely  upon  the  case  of 
Dred  Scott,  for  two  reasons  :  — 

First,  because  I  felt  it  to  be  my  duty  to  Judge  Curtis  to 
make  known  accurately  whatever  he  did,  thought,  or  felt, 
concerning  it. 

Secondly,  because  we  still  have,  and  future  ages  to  which 
our  Constitution  may  descend  will  continue  to  have,  a  Su 
preme  Court  of  the  United  States  ;  and  in  the  present  and 
in  all  coming  time,  it  is  and  will  be  important  that  those 
who  occupy  or  shall  ever  occupy  the  exalted  seats  upon 
that  bench  shall  understand,  and  take  warning  from,  the 
mistakes  of  their  predecessors. 

Perhaps  it  may  not  be  improper  for  me  to  state  that  my 
professional  connection  with  this  case,  dating  only  from  the 
third  day  previous  to  the  second  argument,  did  not  lead 
me,  at  that  time,  to  examine  any  of  the  technical  questions 
arising  out  of  the  state  of  the  record,  or  the  question  of  the 
citizenship  of  a  free  negro.  The  Hon.  Montgomery  Blair, 
who  had  sole  charge  of  the  case  for  Scott,  requested  me  to 

1  I  refer  to  the  case  of  John  Merriman,  a  citizen,  who  in  1861  was  im 
prisoned  in  Fort  McIIenry,  near  Baltimore,  by  a  military  order ;  and  in  whose 
case  the  writ  of  the  Chief  Justice  of  the  United  States  was  refused  entrance 
into  the  fort,  upon  the  excuse  that  the  President  had  suspended  the  writ  of 
habeas  corpus. 


1857.]  DRED   SCOTT   CASE.  241 

assist  him  in  the  argument  about  three  days  before  the 
case  was  called.  I  told  him  that  there  was  not  sufficient 
time  for  me  to  make  any  investigation  of  the  technical 
questions  arising  on  the  pleadings,  or  to  be  of  much  ser 
vice  to  him  on  the  question  of  the  capacity  of  a  free  negro 
to  be  a  "  citizen ;  "  but  that  I  thought  I  knew  enough  of 
the  constitutional  history  of  the  country  to  be  able,  on 
very  short  notice,  to  maintain  the  affirmative  of  the  propo 
sition  that  Congress  could  prohibit  the  existence  of  slavery 
in  any  Territory  of  the  United  States,  if  it  saw  fit  to  do  so, 
and  that,  if  he  would  assign  to  me  one  hour  of  the  time 
allowed  by  the  rule  of  the  court  for  the  argument  of  his 
side  of  the  case,  I  should  be  happy  to  assist  him  by  a  dis 
cussion  of  this  constitutional  question  to  the  best  of  my 
ability.  Mr.  Blair  very  politely  acceded  to  this  arrange 
ment,  and  I  argued  the  constitutional  question  thus  assigned 
to  me.  Two  Senators,  each  of  whom  represented  a  slave- 
holding  State,  Mr.  Crittenden  of  Kentucky  and  Mr.  Badger 
of  North  Carolina,  both  of  the  highest  rank  as  lawyers,  Mr. 
Seaton,  the  wise  and  accomplished  editor  of  the  National 
Intelligencer,  and  other  friends,  urged  me  to  write  out  and 
publish  my  argument.  I  did  so,  and  it  was  printed  by  Mr. 
Seaton  in  his  paper.  I  mention  this,  not  as  proof  of  merit 
in  the  argument,  but  because  I  was  convinced,  by  this  and 
many  other  occurrences,  that  some  of  the  ablest  minds  in 
the  South,  at  that  time,  did  not  regard  it  as  supremely  im 
portant  to  their  sectional  interests  to  have  it  judicially 
proclaimed  that  the  Missouri  Compromise  restriction  was 
unconstitutional.  But  at  the  time  I  made  the  argument,  on 
a  constitutional  question  about  which  I  felt  no  doubt,  I  little 
thought  what  turn  the  case  was  to  take,  although  I  had  a 
strong  presentiment  that  great  public  mischief  would  be 
done,  if  the  extreme  views  about  slavery  that  were  main 
tained  by  our  opponents  should  prevail,  by  any  thing  short 
of  a  judgment  arrived  at  by  the  strictest  requirements  of 
the  record,  and  in  entire  judicial  consistency.  Of  course, 
VOL.  i.  16 


242  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857. 

there  has  been,  and  perhaps  will  continue  to  be,  a  great 
difference  of  opinion  in  regard  to  the  judicial  propriety  of 
the  final  judgment  in  this  case ;  but  I  think  there  can  be 
no  sound  opinion,  among  lawyers,  which  will  justify  the 
assumption  that  a  majority  of  the  court  "  decided "  that 
Congress  could  not  prohibit  the  existence  of  slavery  in  a 
Territory  of  the  United  States. 


1857.]  RESIGNATION  OF   OFFICE.  243 


CHAPTER  IX. 

1857. 

Resignation  of  Office.  —  Reasons  for  the  Step.  —  Correspondence  occa 
sioned  by  it. 

JUDGE  CURTIS,  after  his  return  to  Massachusetts  in  the 
spring  of  1857,  expressed  to  me  strong  doubts  about  con 
tinuing  to  hold  his  office,  and  requested  me,  after  I  should 
have  reflected  upon  the  subject,  to  write  to  him  concerning 
it.  I  may  say,  that  from  the  first  I  understood  the  control 
ling  reason  for  his  resigning  was  the  inadequacy  of  the 
salary ;  but  I  also  understood  that  he  no  longer  felt  that 
confidence  in  the  Supreme  Court  which  was  essential  to  his 
useful  co-operation  with  its  members,  and  with  which  he 
certainly  began  his  connection  with  it.  The  correspondence 
with  the  Chief  Justice,  which  is  given  in  the  preceding 
chapter,  had  no  influence  upon  the  determination  to  which 
he  finally  came.  It  will  be  observed,  that  that  correspond 
ence  commenced  in  April,  and  was  not  terminated  until 
after  the  middle  of  June.  My  first  conversation  with  my 
brother,  on  the  subject  of  his  proposed  resignation,  occurred 
before  this  correspondence  began  ;  and  in  that  conversation 
he  expressed  to  me  fully  the  reasons  for  resigning  on  which 
he  finally  acted.  So  far  as  his  feelings  concerning  the  court 
entered  into  those  reasons,  they  sprang  entirely  from  what 
occurred  in  the  Dred  Scott  case  before  the  adjournment  of  the 
court  in  March ;  and  I  am  sure  that  they  would  have  been 
the  same,  if  the  correspondence  with  the  Chief  Justice  had 
never  taken  place.  I  am  firmly  convinced  that  his  feelings 


244  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857, 

in  regard  to  the  court  received  no  color  even,  from  any 
thing  that  was  personal  between  himself  and  any  of  the 
judges.  His  personal  relations  with  all  of  them  had  always 
been  of  the  kindest  and  most  agreeable  nature ;  and  al 
though  the  correspondence  with  the  Chief  Justice  shows  a 
personal  conflict,  and  evinces  a  feeling  that  he  had  been  im 
properly  treated,  the  real  ground  of  his  dissatisfaction  with 
the  course  of  a  majority  of  his  brethren  lay  entirely  behind 
that  occurrence.  To  state  that  ground  with  proper  accu 
racy,  it  was  a  conviction,  more  or  less  justified  by  what 
occurred  before  the  adjournment  of  the  court,  but  held 
with  entire  sincerity,  that  he  could  no  longer  expect,  on 
constitutional  questions,  to  see  the  court  act  with  that 
judicial  propriety  and  consistency,  and  that  freedom  from 
political  considerations,  which  could  alone  enable  it  to  retain 
the  confidence  of  the  country.  The  pecuniary  reason  for 
resigning  was  the  leading  and  decisive  one ;  the  other,  as 
will  presently  be  seen,  although  secondary  and  subordinate, 
had  a  material  influence. 

His  friend  and  classmate,  Dr.  Robbins,  has  said  of  his 
resignation,  that  "  it  touches  the  only  part  of  Mr.  Curtis's 
professional  life  upon  which  a  shadow  has  rested  ;  "  and  he 
alludes  to  "  expressions  of  censure,  mingled  with  those  of 
regret,  in  private  conversation  and  the  public  press ; "  and 
he  says  that  "  even  those  who  felt  entire  confidence  in  the 
purity  of  his  motives  and  the  validity  of  his  reasons  found 
it  difficult  heartily  to  approve  his  course,  on  account  of  their 
deep  sense  of  the  loss  of  his  services  to  the  country.'' 1 
Although  I  shared  fully  in  the  regrets  which  were  felt,  and 
was  perhaps  as  likely  as  any  one  to  appreciate  the  loss  of 
such  a  man  from  the  bench,  I  never  sympathized  in  any 
degree  with  the  censure  to  which  Dr.  Robbins  alludes, 
and  which  undoubtedly  was  to  some  extent  expressed.  If 
there  is  any  "  shadow  "  resting  upon  his  fame,  on  account 
of  this  resignation,  it  is  proper  that  it  should  be  dispelled ; 

1  Memoir  read  before  the  Massachusetts  Historical  Society. 


1857.]  RESIGNATION   OF   OFFICE.  245 

and  to  this  end,  his  own  feelings,  and  the  feelings  of  those 
who  stood  nearest  to  him,  should  be  laid  fully  before  the 
reader. 

My  own  opinion  in  regard  to  the  step  which  he  contem 
plated  was  expressed  in  a  letter,  which  I  have  always  been 
thankful  that  I  wrote  to  him,  and  from  which  some  extracts 
may  now  perhaps  be  appropriately  given. 

JAMAICA  PLAIN,  July  3d,  1857. 

DEAR  BROTHER,  —  ...  It  is  now  twelve  years,  this  very 
month,  since  Judge  Story  made  known  to  me  his  purpose  to  quit 
the  bench.  I  remember  all  his  arguments  and  all  his  predictions 
respecting  the  court.  .  .  .  He  looked  at  a  resignation  from  much 
the  same  point  at  which  you  now  stand,  with  the  allowance  for  the 
difference  of  your  ages,  and  with  the  further  allowance,  that  he  did 
not  feel  the  pressure  of  pecuniary  considerations,  or  the  demands 
of  his  family.  .  .  .  He  determined  to  resign  ;  —  but  Providence  did 
not  leave  him  to  act  upon  his  intention. 

The  lapse  of  twelve  years,  and  much  more  knowledge  of  the 
institutions  of  the  country  than  I  then  had,  have  not  convinced  me 
that  we  ought  to  regard  the  Supreme  Court  as  certainly  destined 
to  final  disgrace.  [Some  reasons  were  here  urged  to  show  that 
the  question  seemed  to  be,  whether  he  could  do  the  most  good  by 
resigning  or  remaining.]  Undoubtedly,  a  serious  lesson  will  be 
taught,  which  cannot  fail  to  be  felt  by  the  country,  by  the  resigna 
tion  of  a  judge  at  your  time  of  life,  for  the  reasons  which  will  gov 
ern  you,  and  which,  whether  stated  or  not,  will  be  apparent  to  the 
whole  public.  It  will  be  certain  that  you  resign  on  account  of  the 
inadequacy  of  the  salary,  and  on  account  of  the  undeniable  fact, 
that  the  conduct  of  the  court  has  not  been  such  as  can  command 
the  approbation  of  sound  lawyers,  or  the  respect  of  sound  men, 
who  regard  the  proprieties  of  judicial  conduct  as  an  important  part 
of  the  administration  of  the  law.  Whatever  is  involved  in  this 
lesson,  your  resignation  would  certainly  teach  in  a  rather  striking 
way ;  for  you  are  at  an  age,  and  you  have  tastes  and  capacities,  to 
make  a  long  judicial  life  most  desirable  to  you,  if  you  could  have 
it  upon  the  conditions  which  it  is  so  clearly  the  public  interest 
to  provide,  and  which  can  alone  make  it  attractive  to  men  like 
you.  .  .  . 

Whether  you  can  do  most  towards  this  end  by  leaving  the  bench, 


246  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1857. 

and  leaving  men  to  reflect  on  what  may  have  driven  you  from  it, 
or  by  holding  on  and  maintaining  the  standard  by  which  your 
course  has  hitherto  been  guided,  is  the  real  question,  in  my  appre 
hension,  so  far  as  the  interests  of  the  country  are  concerned  ;  and 
if  there  were  no  private  interests  of  your  own  to  come  in  and  decide 
that  question,  I  should  certainly  beg  you  to  hold  on. 

But  there  are  such  private  interests ;  and  upon  this  part  of 
the  subject  I  must  say  that,  while  straitened  circumstances  and 
narrow  means  are  hard  enough  for  all  educated  men  and  their 
children,  a  poor  judge  is,  of  all  conspicuous  and  important  men,  the 
least  desirable  spectacle.  There  are  very  few  things  that  a  judge 
can  do  to  better  his  fortunes ;  and  if  a  man  has  not  independent 
means  of  his  own,  and  the  public  will  not  make  him  independent, 
it  must  be  a  stronger  case  of  public  duty  than  I  have  ever  seen 
that  can  impose  upon  him  a  moral  obligation  to  sacrifice  his  own 
comfort,  and  the  just  expectations  of  his  family,  to  the  public 
advantage.  .  .  . 

I  am  very  glad  to  find,  by  a  note  which  I  received  from  Uncle 
this  morning,  that  he  will  be  here  soon.  I  have  known  very  few 
men  who  take  broader  as  well  as  more  accurate  views  of  any  ques 
tion  of  duty  than  he  does,  and  I  hope  you  will  noi  feel  obliged  to 
act  until  you  see  him.  .  .  . 

Yours  always,  G.  T.  C. 

On  the  same  day  on  which  this  letter  was  written,  and 
therefore  before  lie  received  it,  he  wrote  to  Mr.  Ticknor, 
whose  wife  and  daughter  had  embarked  for  home  on  the 
30th  of  June,  from  Havre,  in  a  steamer  which  touched  at 
Southampton,  and  left  him  in  England  to  complete  some 
business  relating  to  the  Public  Library  in  Boston.1 

To  MR.  TICKNOR. 

MAPLEHURST,2  July  3,  1857. 

MY  DEAR  SIR,  —  I  thank  you  for  your  very  interesting  letter, 
which  came  to  me  a  fortnight  since.3  Since  that  time  I  have  been 
in  Boston  until  yesterday.  I  got  none  but  good  accounts  of  Lizzie.4 

1  Life  of  George  Ticknor,  vol.  ii.  p.  356. 

2  The  name  of  his  country  place  at  Pittsfield. 

8  This  letter  is  contained  in  the  Life  of  Mr.  Ticknor,  vol.  ii.  p.  402. 
*  Mrs.  W.  S.  Dexter. 


1857.]  RESIGNATION   OF   OFFICE.  247 

Mother  saw  her  a  few  days  since,  and  thought  her  going  on  well. 
You  speak  of  returning  in  September.  Before  that  time  I  shall 
have  come  to  a  decision  upon  a  matter  of  great  moment  to  myself, 
—  whether  to  continue  to  hold  my  present  office.  The  expenses  of 
living  have  so  largely  increased,  that  I  do  not  find  it  practicable  to 
live  on  my  salary,  even  now ;  and,  as  my  younger  children  will 
soon  call  for  much  increased  expenses  of  education,  I  shall  soon 
find  it  difficult  to  meet  my  expenses  by  my  entire  income.  Indeed, 
I  do  not  think  I  can  do  so  without  changing,  in  important  particu 
lars,  my  mode  of  life.  Added  to  this,  I  cannot  have  a  house  in 
Washington,  and  I  must  either  live  apart  from  my  family  from  four 
to  six  months  every  year  while  I  go  there,  or  subject  them  to  a 
kind  of  vagrant  life  in  boarding-houses,  neither  congenial  nor  use 
ful.  I  had  hoped  it  would  prove  otherwise,  and  looked  forward  to 
being  able  to  have  a  house  there  for  six  months  in  a  year.  But 
what  with  the  increase  of  luxury  and  the  greatly  enhanced  prices 
there,  I  have  now  no  hope  of  being  able  to  do  this.  I  can  add 
something  to  my  means  by  making  books,  but  at  the  expense  of  all 
my  vacations,  when  perhaps  I  ought  not  to  labor  hard.  The  con 
stant  labor  of  the  summer  has  told  on  my  health  during  the  last 
two  years.  Such  is  the  actual  state  of  the  case  as  respects  my 
duty  to  my  family.  Then  as  regards  the  court  and  the  public,  I 
say  to  you  in  confidence,  that  I  cannot  again  feel  that  confidence  in 
the  court,  and  that  willingness  to  co-operate  with  them,  which  are 
essential  to  the  satisfactory  discharge  of  my  duties  as  a  member  of 
that  body  ;  and  I  do  not  expect  its  condition  to  be  improved.  On 
the  other  hand,  I  suppose  there  is  a  pretty  large  number  of  con 
servative  people  in  the  Northern,  and  some  in  the  Southern  States, 
who  would  esteem  my  retirement  a  public  loss,  and  who  would 
think  that  I  had  disappointed  reasonable  expectations  in  ceasing  to 
hold  the  office;  and  particularly  in  my  own  circuit  I  believe  my 
retirement  would  be  felt  to  be  a  loss  which  would  not  presently  be 
fully  supplied.  But  I  do  not  myself  think  it  of  great  public  im 
portance  that  I  should  remain  where  I  believe  I  can  exercise  little 
beneficial  influence  ;  and  I  think  all  might  abstain  from  blaming  me 
when  they  remember  that  I  have  devoted  six  of  the  best  years  of 
my  life  to  the  public  service,  at  great  pecuniary  loss,  which  the  in 
terest  of  my  family  will  not  permit  me  longer  to  incur.  I  have  no 
right  to  blame  the  public  for  not  being  willing  to  pay  a  larger  sal 
ary  ;  but  they  have  no  right  to  blame  me  for  declining  it  on  account 


248  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

of  its  inadequacy.  These  are  the  principal  views  which  have 
occurred  to  my  own  mind.  I  am  now  forty-seven  years  old,  and 
must  decide  the  question  finally  without  more  delay.  I  believe  I 
have  ten  or  twelve  years'  work  in  me,  if  my  life  and  health  be 
spared,  which,  without  too  much  labor,  would  enable  me  to  make  a 
competent  fortune  for  my  own  old  age,  if  I  should  live  to  old  age, 
and  for  my  family  after  I  shall  be  gone.  I  want  your  advice.  I 
wish  it  could  be  given  after  an  oral  explanation ;  but  I  must  decide 
between  this  time  and  September  1st.  I  have  no  time  to  lose,  and, 
looking  at  the  public  convenience,  the  first  day  of  October  next  is 
the  proper  time  for  my  retirement  from  office,  if  I  am  to  retire. 
Among  all  my  friends,  there  is  no  one  whose  judgment  on  this 
question  would  have  more  influence  with  me  than  yours ;  for  while 
I  know  your  affection  for  me  would  cause  you  to  look  carefully 
after  all  that  bears  on  my  private  welfare  and  my  private  duties,  I 
believe  also  you  would  take  a  just  and  comprehensive  view  of  my 
public  duty.  If  you  will  let  me  hear  from  you  at  your  earliest 
leisure,  you  will  aid  me  in  this  important  affair. 

We  are  all  well,  though  Lois 1  has  had  the  scarlet-fever  severely. 
Neither  of  the  others  took  it.  Walter 2  had  not  been  well  for  some 
time,  and  I  took  him  home  just  before  vacation  began.  The  change 
of  air  has  been  serviceable  to  him,  and  he  is  recovering.  Please 
give  my  love  to  Aunt  and  Cousin  Anna,  and  believe  me  ever 
Affectionately  yours, 

B.  R.  CURTIS. 

Mr.  Ticknor  did  not  receive  this  letter  before  he  re 
turned  home,  and  lie  first  learned  of  my  brother's  resig 
nation  when  I  met  him  on  board  the  steamer  on  which 
he  arrived  at  Boston  early  in  September,  after  it  had 
become  public.  The  following  note  expressed  in  sub 
stance  what  I  am  sure  he  would  have  said  if  he  had  an 
swered  my  brother's  letter ;  and  although  it  was  expressed 
with  feminine  feeling,  it  comprehended  all  that  could  be 
truthfully  said  by  those  who  felt  at  once  the  public  and 
the  private  considerations  bearing  upon  such  an  occur 
rence. 

1  Now  Mrs.  William  G.  Low,  of  Brooklyn,  N.  Y. 

2  His  eldest  son,  then  at  Harvard. 


1857.]  RESIGNATION   OF    OFFICE.  249 

FROM  MRS.  TICKNOR. 

PARK  STREET,  Sept.  5,  1857. 

MY  DEAR  JUDGE,  —  I  feel  very  grateful  to  you  for  your  kind 
ness  in  writing  to  me  to  tell  me  of  the  great  change  you  have  made. 
I  am  so  sorry  that  I  really  don't  know  what  to  say  to  you  about  it. 
I  cannot  doubt  that  your  decision  is  just  and  right,  but  it  is  a 
mournful  thing  that  it  should  be  so.  That  a  country  so  overflow 
ing  with  wealth  will  not  sufficiently  recompense  those  who  would 
willingly  labor  for  its  highest  good,  and  that  in  its  present  confused 
and  excited  condition  it  should  lose  your  influence  and  authority  in 
just  the  place  you  are  leaving,  are  sad  facts,  which  trouble  me  much. 
But  I  will  try  to  look  most  at  your  release  from  heavy  labor  and 
anxiety,  and  trust  that  you  will  no  longer  suffer  from  separation 
from  those  you  love  best.  Your  uncle  will  lament,  as  I  do,  the  loss 
to  the  country ;  but  he  has  also  the  same  reliance  upon  your  judg 
ment.  I  look  for  him  next  Thursday,  such  is  the  blessed  punctual 
ity  of  steam.  .  .  .  He  has  had  two  months  of  great  enjoyment  in 
England.  But  for  his  love  of  work,  of  which  he  will  find  an 
abundance  here,  I  should  fear  he  might  find  Boston  a  little  dull. 
Pray  give  my  love  to  all  with  you,  and  congratulate  your  wife  for 
me  upon  the  adieu  to  Washington. 

Always  affectionately  yours,  ANNA  TICKNOR. 

I  trust  it  is  now  apparent  that  his  resignation  was  not 
determined  on  without  due  consideration  ;  and  that  the 
question  was  one  which  a  man  must  decide  for  himself, 
with  a  full  right  to  expect  that  his  decision  would  be  re 
garded  as  correct.  I  have  therefore  only  to  give,  as  matters 
that  may  have  some  interest  for  the  reader,  the  official  and 
unofficial  letters  which  accompanied  or  followed  the  resig 
nation. 

To  THE  PRESIDENT. 

BOSTON,  Sept.  1,  1857. 

SIR,  —  I  hereby  resign  to  you  the  office  of  Associate  Justice  of 
the  Supreme  Court  of  the  United  States,  which  resignation  is  to 
take  effect  on  the  first  day  of  October  next. 

I  have  named  that  day  because  I  shall  then  have  discharged  my- 


250  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

self  of  all  judicial  business  pending  before  me,  and  no  suitor  will  be 
inconvenienced  by  my  retirement. 

My  private  duties  are  inconsistent  with  a  longer  continuance  in 
the  public  service. 

With  great  respect,  I  am  your  obedient  servant, 

B.  R.  CURTIS. 

FROM  THE  ATTORNEY-GENERAL. 

ATTORNEY-GENERAL'S  OFFICE, 
Sept.  14,  1857. 

SIR,  —  I  am  directed  by  the  President  to  inform  you  that  he  re 
ceived  some  days  ago  your  letter  of  the  first  instant  resigning  your 
office  as  Associate  Justice  of  the  Supreme  Court,  and  caused  it  to 
be  filed  in  this  office.  This  morning  he  received  a  duplicate  of  the 
same  letter,  which  he  has  disposed  of  in  the  same  way.  The  Pres 
ident  gives  you  his  thanks  for  postponing  the  time  of  your  retire 
ment  to  a  period  when  no  suitor  will  be  inconvenienced  by  it. 
I  am,  with  great  respect,  yours,  &c., 

J.  S.  BLACK. 

To  EX-PRESIDENT    FILLMORE. 

BOSTON,  Sept.  1,  1857. 

DEAR  SIR,  —  Having  received  from  you,  as  the  President  of 
the  United  States,  the  appointment  to  the  office  of  Associate  Jus 
tice  of  the  Supreme  Court  of  the  United  States,  and  having  come 
to  the  conclusion  to  resign  that  office,  it  seems  to  me  proper  that  I 
should  state  to  you  why  I  have  done  so. 

The  greatly  increased  expenses  of  living  have  rendered  the 
salary  attached  to  the  office  inadequate  to  provide  a  suitable  home 
for  my  large  family  in  Washington  while  attending  the  court  there, 
and  to  pay  my  other  necessary  expenses.  I  am  obliged  to  expend, 
in  addition  to  my  salary,  my  entire  private  income.  By  leaving 
my  family  at  my  place  in  the  country  throughout  the  year,  I  might 
be  able  to  live  on  the  salary,  though  this  is  not  certain  ;  but  it  does 
not  consist  with  my  views  of  my  imperative  duties  to  them  to  pass 
eight  months  of  the  year  away  from  those  whom  the  providence  of 
God  has  placed  nearest  to  me,  and  subjected  to  my  care.  This 
alone  would  be  sufficient  to  decide  me  to  retire  from  the  public  ser 
vice  and  return  to  the  bar. 

Nor  do  I  think  that,  in  the  present  state  of  the  court,  or  in  any 
state  of  it  which  can  reasonably  be  anticipated  in  my  time,  my  con- 


1857.]  RESIGNATION   OF   OFFICE.  251 

tinuance  on  that  bench  ought  'o  be  deemed  of  such  public  impor 
tance  as  to  weigh  much  in  favor  of  my  continuing  there.  You  will 
readily  understand  that  this  is  a  subject  on  which  I  cannot  go  into 
details,  and  cannot  without  indelicacy  even  offer  reasons  in  support 
of  the  opinion  I  have  expressed;  but  I  can  say  it  is  an  honest  opin 
ion,  founded  deliberately  upon  a  careful  scrutiny  of  the  subject. 

I  have  held  this  great  trust  six  years  under  your  appointment. 
I  can  assure  myself  of  nothing  concerning  it,  save  that  both  in 
holding  it  and  resigning  it  I  have  endeavored  to  do  my  duty. 
With  much  respect,  I  am  your  obedient  servant, 

BENJAMIN  R.  CURTIS. 

Mr.  Fillmore's  reply  was  as  follows :  — 

BUFFALO,  Sept.  4,  1857. 

MY  DEAR  SIR,  —  Your  letter  of  the  1st,  informing  me  that  you 
have  determined  to  resign  the  office  of  Justice  of  the  Supreme 
Court  of  the  United  States,  has  just  come  to  hand,  and  I  have 
perused  it  with  surprise  and  regret.  I  had  no  suspicion  that  such 
a  calamity  was  to  befall  the  country  at  this  time.  I  have  always 
looked  back  to  your  appointment  as  one  of  the  most  fortunate  acts 
of  my  brief  administration,  and  one  to  which  I  and  my  friends 
could  always  point  with  proud  satisfaction.  This  feeling  was 
greatly  increased  by  your  unanswerable  arguments  in  the  opinion 
delivered  by  you  in  the  Dred  Scott  case. 

I  cannot,  of  course,  know  what  your  duty  to  your  family  may 
require,  but  I  am  sure  I  cannot  be  mistaken  in  saying  that  your 
duty  to  your  country  requires  that  you  should  not  resign.  I  beg 
of  you  not  to  despair,  though  there  may  be  much  to  discourage ; 
yet  I  am  sure  your  services  and  abilities  are  appreciated  by  the 
bar  and  the  intelligent  portion  of  the  public.  I  am  sure  no  man 
has,  in  so  short  a  time,  gained  a  more  enviable  judicial  reputation ; 
and  there  is  no  man  to  whom  the  country  looks  with  more  hopeful 
confidence  than  to  yourself;  and  I  greatly  fear  that  your  resigna 
tion,  especially  at  this  time,  will  not  only  impair  the  confidence  of 
all  good  and  intelligent  men  in  the  stability  of  our  institutions,  but 
that  the  appointment  of  a  successor  may  be  most  unfortunate.  I 
will  not  be  more  explicit  in  my  apprehension  on  this  point.  You 
may  know  who  will  probably  be  selected,  but  I  confess  I  fear  the 
worst. 

I  trust  you  will  pardon  me,  therefore,  for  the  earnest  solicitude 


2-V2  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1857. 

which  I  feel  on  this  subject,  and  excuse  me  if  I  urge  you  again  and 
again  to  reconsider  the  subject,  and,  if  you  cannot  make  the  sacri 
fice  of  holding  the  office  permanently,  at  least  consent  to  submit  to 
it  for  a  time,  until  a  reasonable  hope  can  be  entertained  that  the 
vacancy  will  be  well  filled. 

I  write  in  haste,  giving  my  first  impressions,  and  must  ask  your 
indulgence  for  the  freedom  with  which  I  have  spoken. 
I  am  truly  yours, 

MlLLARD    FlLLMORE. 

FROM  JUDGE  PITMAN,  OF  THE  DISTRICT  COURT  OF  RHODE 

ISLAND. 

PROVIDENCE,  Sept.  20,  1857. 

DEAR  SIR,  —  It  was  with  much  sorrow  that  I  received  yours  of 
the  1st  instant,  informing  me  of  your  resignation  of  the  office  of 
judge  of  the  Supreme  Court  of  the  United  States.  There  is  a  uni 
versal  sentiment  of  regret  at  this  determination  of  yours  among  all 
whom  I  have  heard  speak  on  the  subject ;  but  you  are  the  best 
judge  of  the  duties  which  you  owe  to  the  public,  and  to  yourself 
and  family.  My  loss  as  one  of  the  public,  I  fully  appreciate  ;  and 
also  the  loss  of  an  associate  in  this  district,  whom  I  so  much  esteem, 
and  I  fear  whose  place  will  not  be  filled  to  my  satisfaction.  I 
deem  it  a  sad  misfortune,  and  one  which  indicates  badly  for  the 
future,  that  an  honest  judge  will  not  find  himself  pleasantly  situ 
ated  on  the  bench  of  the  Supreme  Court  of  the  United  States.  It 
seems  to  be  expected  that  judges  are  to  lend  themselves  to  support 
the  party  to  which  they  owe  their  promotion.  And  I  fear  that  a 
court  as  independent  as  the  Constitution  could  make  it,  and  which 
has  heretofore  been  looked  upon  with  so  much  confidence  to  pro 
tect  us  from  the  madness  of  the  times,  will  now  be  considered  as 
one  of  the  instruments  of  a  party.  I  intended  to  have  written  you 
some  time  since,  thanking  you  for  your  most  able  and  independent 
opinion  in  the  Dred  Scott  case.  It  will  stand  to  give  you  eternal 
honor,  when  the  unfortunate  opinion  of  the  majority  will  have  been 
consigned  to  the  contempt  which  it  merits  ;  if,  indeed,  we  shall  ever 
recover  from  the  down  ward  tendency  which  so  strongly  foreshadows 
our  destruction.  ...  I  hope  I  may  have  the  pleasure  of  seeing 
you  again  at  the  bar,  if  I  may  not  be  favored  with  your  presence 
on  the  bench  ;  and  I  wish  all  the  prosperity  and  happiness  in  your 
return  to  the  bar  which  you  so  well  deserve. 


1857.]  RESIGNATION   OF   OFFICE.  253 

Whoever  may  be  your  successor,  I  have  no  reason  to  expect  that 
my  situation  as  judge  will  be  much  longer  prolonged,  and  therefore 
it  may  be  of  little  consequence  to  me  personally. 

I  am  very  truly  your  friend  and  obedient  servant, 

JOHN  PITMAN. 

FROM   JUDGE   HARVEY,    OF    THE    DISTRICT   COURT    OF   NEW 
HAMPSHIRE. 

CONCORD,  Sept.  5,  1857. 

DEAR  SIR,  —  On  my  return  home  last  night,  after  an  absence 
of  a  few  days,  I  found  your  letter  of  Sept.  1,  in  which  I  am  in 
formed  that  you  have  come  to  the  conclusion  to  resign  your  office 
of  Associate  Justice  of  the  Supreme  Court  of  the  United  States. 

No  intelligence  could  have  been  more  unwelcome  or  unexpected 
by  me. 

At  my  time  of  life,  now  so  far  advanced  in  years,  and  having 
already  outlived  two  of  your  predecessors,  both  of  whom  were 
younger  than  myself,  I  had  no  reason  to  expect,  and  indeed  the 
thought  never  occurred  to  me  after  your  appointment,  that  the 
office  would  ever  become  vacant  again,  from  any  cause,  during  my 
life. 

I  am  sorry  to  learn  that  that  event  is  now  about  to  take  place. 
Most  sincerely  do  I  regret  it ;  but  I  have  no  doubt  you  have  fully 
considered  the  subject,  and  have  the  best  of  reasons  for  it. 

Your  uniform  kindness  towards  me,  at  all  times,  will  ever  be 
remembered,  and  believe  me,  dear  sir,  I  am,  with  great  respect  and 
regard,  Yours  most  truly, 

MATTHEW  HARVEY. 

FROM  JUDGE  WARE,  OF  THE  DISTRICT  COURT  OF  MAINE. 

PORTLAND,  Sept.  6,  1857. 

DEAR  SIR, — 1  hardly  need  say  to  you  that  it  was  with  very 
great  regret  that  I  learnt  from  your  letter  your  determination  to 
vacate  the  office  you  now  hold  on  the  bench  of  the  Supreme  Court. 
It  came  to  me  entirely  unexpected,  and  though,  on  a  little  reflection, 
my  surprise  is  diminished,  my  regret  is  increased.  I  may  add,  that 
the  feeling  of  the  public,  and  especially  of  the  bar,  is  one  of  unmin- 
gled  sorrow.  I  can  easily  comprehend  that  you  may  have  various 
reasons  for  wishing  to  withdraw  from  the  court.  The  powers  which 


254  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

have  always  been  supposed  to  be  vested  in  it,  of  controlling  and 
annulling  the  legislation  of  not  only  the  States  but  of  the  United 
States,  when  exercised  on  ordinary  subjects  of  legislation  in  the 
most  cautious  and  temperate  manner,  is  one  of  very  great  respon 
sibility.  But  when  it  touches  great  political  questions,  involving 
the  interests  and  passions  of  the  whole  nation,  the  responsibility  is 
fearful.  I  do  not  ask  any  man,  and  I  can  hardly  blame  him  for 
declining  it. 

I  do  not  understand,  for  a  certainty,  from  your  letter,  whether 
it  is  your  intention  not  to  attend  the  September  term  of  the  court 
in  this  district,  though  I  infer,  from  the  tenor  of  your  letter,  it  is. 
All  the  business  on  the  docket  at  the  Circuit  term  was,  I  believe, 
disposed  of  that  was  ready.  Since,  there  has  been  one  Admiralty 
appeal  entered  that  will  be  ready  for  hearing  at  the  next  term ;  and 
this  is  all  that  I  know  of  which  cannot  be  disposed  of  without 
your  presence.  Some  of  the  bar  have  expressed  a  wish  to 
know  beforehand,  for  a  certainty,  whether  you  contemplate 
coming  at  this  term  or  not. 

With  sentiments  of  great  respect, 

ASHUR  WAKE. 

FROM   CHIEF  JUSTICE  TANEY. 

FAUQTJIER  SPRINGS,  VA.,  Sept.  7,  1857. 

DEAR  SIR,  —  Your  letter  informing  that  you  have  resigned  the 
office  of  Associate  Justice  of  the  Supreme  Court  did  not  reach  me 
until  the  day  before  yesterday. 

My  own  experience  has  long  since  shown  me  the  inadequacy  of 
the  salary  attached  to  the  office.  At  your  time  of  life,  you  may 
reasonably  expect  many  years  of  health  and  strength  enough  for 
judicial  and  professional  labors.  And  I  have  no  doubt  you  have 
judged  wisely  in  returning  to  the  bar  instead  of  remaining  on  the 
bench,  and  diminishing  yearly  the  provision  you  had  made  for 
your  family  before  your  appointment. 

Respectfully,  your  obedient  servant, 

R.  B.  TANEY, 

FROM  MR.  JUSTICE  NELSON. 

COOPERSTOWN,  Sept.  4,  1857. 

MY  DEAR  SIR,  —  Your  favor  of  the  1st  instant  has  taken  me 
altogether  by  surprise ;  and  personally,  as  well  as  publicly,  I  sin- 


1857.]  RESIGNATION   OF   OFFICE.  255 

cerely  regret  your  determination.  I  was  fully  aware  of  the  sacri 
fice  you  made  pecuniarily  in  accepting  the  judgeship,  but  had  hoped 
that  you  had  made  up  your  mind  to  submit  to  it.  I  do  not,  how 
ever,  question  the  wisdom  of  your  decision  ;  on  the  contrary,  I  am 
free  to  say,  if  I  was  not  in  this  place,  with  my  knowledge  and  ex 
perience  of  its  responsibilities  and  sacrifices,  I  should  never  hold 
the  office.  I  have  the  advantage  of  you,  however,  as  my  age  is 
such  that,  in  the  ordinary  course  of  life,  my  period  of  judicial  labor 
is  short.  You  had  a  long  term  in  prospect,  and  from  the  condition 
of  the  members  of  the  bench  were  unable  to  tell  who  would  be 
your  associates.  A  few  years  must  work  an  extensive  change. 
God  grant  the  successors  may  be  worthy  of  the  place  and  the 
Republic!  Though  we  shall  be  separated  as  to  judicial  labors,  I 
trust  you  may  be  with  us  in  an  equally  honorable  and  useful  service, 
at  our  stated  term,  as  a  counsellor  and  friend  of  the  court.  And  if 
I  should  see  you  advanced  as  a  member  of  a  still  higher  court  in 
the  other  end  of  the  Capitol,  there  is  no  friend  who  will  witness  it 
with  sincerer  satisfaction.  .  .  . 

Very  truly  and  sincerely  yours, 

S.  NELSON. 

FROM  MR.  JUSTICE  CATRON. 


TULLAHOMA,  TENN.,  Sept.  8,  1857. 

MY  DEAR  SIR,  —  I  have  just  received  your  note  informing  me 
that  you  had  transmitted  to  the  President  your  resignation  as  Asso 
ciate  Justice  of  the  Supreme  Court  of  the  United  States.  I  had 
seen  such  an  annunciation  by  telegraph  four  days  since,  which  I 
supposed  to  be  true  from  a  conversation  you  and  I  had  last  winter. 
I  regret  that  you  felt  constrained  to  take  the  step,  on  several  ac 
counts  :  the  bench  has  been  filling  up  for  some  years  past  with 
lawyers,  and  that  of  the  best  the  circuits  afforded,  with  characters 
suited  to  the  position  ;  the  loss  of  one  of  these  is  matter  of  public 
concern. 

On  personal  grounds,  I  regret  your  resignation  very  much. 
Men  may  be  good  lawyers  and  good  judges,  but  so  disagreeable 
in  their  official  relations  and  social  intercourse  as  to  distress  one 
greatly.  I  have  suffered  much  from  it  ;  but  I  say  it  in  all  sin 
cerity,  that  in  your  case  I  never  heard  a  word,  nor  saw  an  act, 
calculated  even  to  irritate.  Your  conduct  afforded  me  pleasure  in 
the  consultation-room,  and  your  conversation  delight  over  the 
social  glass. 


256  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

That  we  may  again  meet  I  sincerely  hope.  If  I  can  be  of  any 
service  to  you  or  yours,  or  to  your  friends,  command  me  freely. 
Present  my  best  regards  to  Mrs.  Curtis,  —  in  which  Mrs.  Catron 
joins  me,  and  includes  yourself. 

With  great  regard,  yours  truly, 

J.  CATKON. 

FROM  MR.  JUSTICE  WAYNE. 

WASHINGTON,  Sept.  21,  1857. 

MY  DEAR  SIR,  —  I  have  been  very  much  of  a  wanderer  for 
three  weeks  on  my  way  to  this  city,  and  your  friendly  letter,  for  so 
I  esteem  it,  has  overtaken  me  here ;  but  I  have  returned  in  good 
health,  and  Mrs.  Wayne  is  well. 

I  need  not  assure  you  how  much  I  regret  your  resignation, 
both  on  my  own  account  and  that  of  the  public ;  but  having  the 
fullest  confidence  in  your  judgment,  I  cannot  doubt  your  having 
done  well,  both  for  yourself  and  family.  What  are  we  in  social 
life  without  adequate  means  to  live  up  to  our  positions,  and  to  give 
to  our  children  the  chances  of  doing  so  too,  with  the  aid  of  some 
thing  to  begin  life?  How  uncertain  too  is  life!  We  know  not 
when  we  shall  be  called  away.  God  grant  that  yours  may  be 
spared  for  many  years,  for  honor,  happiness,  and  usefulness.  But 
I  shall  miss  you  much,  privately  as  well  as  officially,  —  all  of  us  will 
feel  it.  But  though  separated  from  those  relations  in  which  we 
were,  I  shall  ever  cultivate  for  you  and  yours  a  very  sincere  friend 
ship.  Write  to  me  at  any  time,  particularly  if  I  can  serve  you  in 
any  way.  Present  Mrs.  Wayne  and  myself  to  Mrs.  Curtis  and 
your  children.  We  shall  leave  here  on  Thursday  for  Cincinnati, 
and  perhaps  further  west,  maybe  Kansas. 

I  am  sincerely  your  friend, 

JAMES  M.  WAYNE. 

FROM  MR.  JUSTICE  CAMPBELL. 

WASHINGTON  CITY,  Sept,  3,  1857. 

DEAR  SIR,  —  Your  letter  of  the  1st  instant  was  received  this 
morning. 

I  greatly  regret  the  decision  you  have  made  to  resign  your  place 
on  the  bench  of  the  Supreme  Court.  Had  I  been  aware  that  such 
a  measure  was  in  contemplation,  I  should  have  placed  before  you 
an  earnest  remonstrance  on  the  subject.  There  are  public  con- 


1857.]  RESIGNATION  OF   OFFICE.  257 

siderations  which  in  my  judgment  render  your  resignation  a  mis 
fortune  to  the  country. 

I  hope  you  will  not  consider  it  obtrusive  or  unbecoming  in  me 
to  express  to  you  my  high  appreciation  of  the  very  great  abilities 
you  brought  to  the  performance  of  your  duties,  and  my  respect 
and  veneration  for  the  integrity  with  which  those  duties  were 
habitually  and  consistently  discharged  on  your  part.  It  is  a  great 
satisfaction  to  me  that  our  relations  on  the  bench  have  uniformly 
been  those  of  courtesy  and  kindness,  and  I  trust  that  they  may 
from  time  to  time  be  renewed,  notwithstanding  this  official  sep 
aration. 

Mrs.  Campbell  joins  me  in  sincere  regret  for  the  decision  you 
have  made,  and  in  the  expression  of  esteem  and  respect  for  Mrs. 
Curtis  and  yourself. 

Very  truly  yours,  J.  A.  CAMPBELL. 

I  find  no  letter  from  Judge  Grier,  but  his  sentiments 
were  expressed  in  the  following :  — 

FROM   MR.  E.  N.  DICKERSON. 

NEW  YORK,  Sept.  16,  1857. 

MY  DEAR  SIR,  —  It  was  with  very  great  regret  that  I  learned 
from  Judge  Grier,  who  was  staying  with  me  at  Rockaway,  your 
resolution  to  resign  your  office  of  Associate  Justice  of  the  Supreme 
Court.  We  had  been  talking  about  the  newspaper  rumor  at  the 
table  in  the  evening,  and  we  agreed  to  discredit  it  as  an  idle  trick 
of  some  country  editor  to  set  aspirants  for  office  in  an  excitement ; 
but  in  a  few  minutes  your  letter  arrived  which  overturned  our 
theory.  You  can't  conceive  how  much  regret  Judge  Grier  ex 
hibited,  and  how  much  we  all  felt  that  a  serious  public  loss 
had  been  sustained.  Judge  Nelson  has  expressed  the  same  feel 
ing  with  great  sincerity,  and  every  gentleman  at  the  bar  whose 
opinion  is  worth  repeating  has  joined  in  a  common  expression  of 
regret. 

Since  it  was  made  public,  the  feeling  has  been  so  universal  that 
I  have  hoped  you  would  have  reconsidered  your  determination  and 
yielded  to  the  general  desire  of  the  bar  and  country,  and  I  am  now 
actuated  by  the  hope  that  you  will  see,  in  the  manner  your  resig 
nation  has  been  received,  an  inducement  to  withdraw  it.  I  sin- 
VOL.  i.  17 


258  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857. 

cerely  hope  that  such  may  have  been  the  effect,  and  that  you  will 
relieve  the  anxiety  which  every  one  feels  about  the  appointment 
of  your  successor,  by  retaining  a  position  which  you  have  so  highly 
honored,  and  from  which  you  can  be  so  ill  spared. 

My  kind  remembrance  to  Madame  and  to  the  children. 
Very  sincerely  your  friend, 

EDW.  N.  DICKERSON. 

FROM  JUDGE  MCLEAN. 

CHICAGO,  July  12,  1857. 

MY  DEAR  JUDGE,  —  I  have  just  received  your  note,  and  have 
read  the  latter  part  of  it  with  the  deepest  concern.  I  beg  you  not 
*o  act  until  another  winter  at  Washington. 

The  court  can  never  retrieve  what  it  has  lost.  But  should  we, 
under  such  circumstances,  abandon  it?  We  may  do  the  country 
some  service  by  remaining,  at  least  another  term.  .  .  . 

Again  I  entreat  you  to  postpone  action  until  you  attend  another 
term. 

I  have  no  doubt  wharfage  is  a  maritime  lien.  It  is  given  in 
Michigan  by  statute,  and  does  not  depend  on  possession.  The 
District  Judge  held,  the  twelfth  Admiralty  rule  limited  the  mari 
time  lien  to  material-men.  In  this,  I  think,  he  was  mistaken. 

When  you  receive  this,  please  write  to  me,  directed  to  Cin 
cinnati. 

I  have  about  seven  hundred  cases  on  the  docket  at  this  place. 
Mrs.  McLean  is  not  with  me.     My  regards  to  Mrs.  Curtis. 
Very  truly  yours, 

JOHN  MCLEAN. 

FROM  THE  SAME. 

CHAPEL  WOOD,  July  30,  1857. 

MY  DEAR  JUDGE,  —  Your  favor  of  the  23d  instant  I  have  received 
and  read  with  attention.  Your  reasons  for  the  step  you  propose  to 
take  are  strong,  and  especially  those  which  relate  to  your  family. 
I  frankly  admit,  much  as  I  should  deplore  your  loss  on  the  bench, 
both  from  public  and  private  considerations,  if  the  future  did  not 
promise  more  than  the  members  of  the  court  now  realize,  I  could 
not  object  to  your  resignation. 

I  think  it  is  probable  that  at  the  next  session  of   Congress  we 


1857.]  EESIGNATION   OF   OFFICE.  259 

shall  be  relieved  from  circuit  duties ;  and  there  is  some  ground  to 
hope  that  our  salaries  may  be  increased  to  eight  or  ten  thousand 
dollars.  If  you  could  be  assured  that  these  changes  would  be 
made,  would  it  not  change  your  present  purpose? 

I  have  no  recent  or  reliable  information  from  the  party  in  power 
in  regard  to  either  of  the  above  subjects.  But  I  judge,  from  the 
party  sagacity  of  the  friends  of  the  Administration,  that  they  will 
not  suffer  so  favorable  an  opportunity  as  the  next  session  will  af 
ford  to  pass  without  an  increase  of  their  patronage  by  creating 
circuit  judges  and  giving  permanency  to  their  constitutional  views. 
Nothing  of  this  kind  could  be  expected  from  the  Whigs,  if  they 
were  in  power,  as  they  are  always  divided  among  themselves,  and 
especially  in  making  appointments  to  office.  This  measure  will 
enable  the  judges  to  be  with  their  families  while  in  the  discharge 
of  their  duties.  .  .  . 

If  you  have  not  some  local  arrangements  which  will  not  admit 
of  a  postponement,  is  there  not  enough  in  the  possible,  not  to  say 
probable,  events  of  next  winter  to  justify  a  delay  of  your  resigna 
tion  some  three  or  four  months  ? 

Would  you  not  feel  a  little  awkward  at  the  bar  ?  There  is  no 
instance  in  our  history  where  a  judge  of  the  Supreme  Court  left 
the  bench  and  afterwards  engaged  in  the  practice  of  law.  Chief 
Justices  Jay  and  Ellsworth  resigned,  but  neither  of  them  afterwards 
appeared  at  the  bar.  .  .  . 

The  strongest  consideration  that  I  can  present  against  your 
resignation  is,  that  our  country  is  in  a  great  crisis,  and  unless  there 
shall  be  a  thorough  reform  in  the  administration  of  the  govern 
ment,  it  will  be  overthrown  in  twenty  years.  On  the  bench,  being 
in  a  minority,  we  cannot  do  much,  except  by  maintaining  the  great 
principles  of  the  Constitution.  .  .  . 

Having  before  you  all  the  circumstances  and  facts  which  have  a 
bearing  upon  the  question  of  resignation,  you  are  more  competent 
to  decide  than  your  friends  can  possibly  be.  While  I  shall  most 
sincerely  arid  deeply  regret  the  separation,  I  trust,  should  you 
leave  us,  that  your  cherished  hopes  may  be  more  than  realized  at 
the  bar.  In  that  event,  there  will  be  only  left  for  me  to  remem 
ber  with  great  interest  the  intercourse  we  have  had  on  the  bench, 
for  the  last  seven  years. 

Very  sincerely  yours, 

JOHN  MCLEAN. 


260  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1857. 

FROM  THE  SAME. 

CHAPEL  WOOD,  Sept.  6,  1857. 

MY  DEAR  JUDGE,  —  In  our  papers  of  yesterday,  it  was  an 
nounced  that  you  had  resigned  your  seat  on  the  bench,  and  the 
receipt  of  your  very  kind  letter  confirmed  the  report.  Although 
I  had  reason  to  believe,  from  your  last  letter,  that  you  would 
come  to  this  determination,  yet  I  cherished  a  hope  that  you 
would  postpone  the  resignation,  —  at  least  until  after  our  next 
term.  But  I  feel  bound  to  say,  the  reasons  you  give  show  such 
a  high  moral  obligation  and  Christian  duty,  that  I  cannot  say  you 
have  erred. 

My  nature  is  so  selfish,  that  I  felt  a  regret  that  I  cannot  describe, 
both  in  regard  to  personal  considerations  and  also  for  the  irrepara 
ble  loss  sustained  by  the  bench.  When  Story  left  us,  the  same 
sensation  oppressed  me.  One  change  after  another,  since  I  have 
been  a  member  of  the  court,  has  occurred,  until  I  have  lost  the 
interest  and  pride  I  once  felt  in  the  tribunal.  In  1830,  when  I 
first  took  my  seat,  the  court  commanded  the  respect  and  veneration 
of  the  country  ;  but  it  can  never  hope  to  regain  so  elevated  a  posi 
tion  in  the  future.  While  I  remain  a  member  of  it,  I  shall  endeavor 
to  think  of  the  time  past,  rather  than  of  the  present,  or  the  time 
to  come. 

In  our  journey  through  life,  the  most  interesting  associations 
are  broken,  and  we  are  thrown  upon  the  past  to  cherish  in  our 
memories  and  in  our  hearts  whatever  sweetened  our  labors  and 
contributed  to  our  happiness. 

I  hope,  my  dear  Judge,  that  your  expectations  will  be  more  than 
realized  at  the  bar,  and  that  your  days  may  be  peaceful,  prosperous, 
and  happy.  And  rest  assured,  that  no  change  of  circumstance  or 
place  can  lessen  the  esteem  and  affectionate  regard  of 

Your  friend,  JOHN  McLEAN. 

Mrs.  McLean  unites  with  me  in  regards  to  Mrs.  Curtis  and 
yourself. 

FROM  THE  HON.  REVERDY  JOHNSON. 

SARATOGA  SPRINGS,  Sept.  11,  1857. 

MY  DEAR  JUDGE,  —  A  letter  just  received  from  your  brother, 
to  whom  I  wrote  on  the  subject,  confirms  the  report  of  your  resig- 


1857.]  RESIGNATION   OF   OFFICE.  261 

nation.  Your  private  reasons,  as  he  states  them,  are  controlling ; 
but  I  cannot  tell  you  how  sincerely  I  regret  your  leaving  the 
bench.  The  loss  to  th^  public  no  one  knows  better,  I  think,  than 
I  do ;  while  to  me  personally  it  is  especially  painful.  I  may  be 
pardoned,  I  hope,  in  saying,  even  to  yourself,  that  I  have  never 
known  a  mind  more  peculiarly  fitted  for  judicial  duty  than  yours. 
That  the  change  will  be  to  your  benefit  in  a  pecuniary  sense,  I  am 
sure.  This  will  be  the  consolation  of  your  friends,  —  it  is  the  only 
one  they  will  have.  That  your  life  may  be  long  spared,  and  your 
success  be  all  that  you  wish,  is  the  ardent  hope  of 
Your  friend  and  servant, 

REVERDY  JOHNSON. 


FROM  THE  SAME. 

BALTIMORE,  Sept.  22,  1857. 

MY  DEAR  JUDGE,  —  Thank  you  for  your  kind  reply  to  my  note 
from  Saratoga.  As  I  then  said,  your  reasons  for  retiring  were 
conclusive,  but  I  yet  wish  that  you  had  delayed  it  until  after  the 
next  term  of  the  Supreme  Court,  as  your  reasons  would  be  (as  I 
think  they  are)  by  many  persons  misunderstood,  not  only  unjustly 
to  yourself,  but  to  the  other  members  of  the  court.  I  hope  you  will 
not  think  it  amiss,  that  I  have  taken  steps  to  put  the  matter  on  its 
true  footing.  An  editorial  to  that  effect  will  perhaps,  in  a  few 
days,  appear  in  the  Courier  and  Enquirer,  New  York.  You  know 
how  sincerely,  with  yourself,  I  value  the  high  character  of  the 
court,  and  how  deeply  we  should  feel  the  loss  of  it,  in  public 
opinion.  The  sooner,  therefore,  that  every  misrepresentation  is 
corrected,  the  better ;  and  with  that  view  I  have  done  what  I  state. 
Who  your  successor  will  be  is  yet  uncertain.  .  .  . 

It  would  much  increase  the  true  concern  of  losing  you  from 
the  bench,  if  I  thought  that  I  was  not  often  to  meet  you.  It  is 
in  all  sincerity  that  I  assure  you,  that  much  of  the  gratification  I 
have  had  in  attending  the  Supreme  Court  was  that  you  were  of  it. 
Wishing  you  every  success  and  happiness  in  life,  I  am,  as  ever, 
Faithfully  your  friend, 

REVERDY  JOHNSON. 

I  do  not  know  that  Mr.  Johnson's  intended  explanation 
of  the  reasons  for  the  resignation  was  ever  published ;  but 


262  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

I  presume  it  was  not,  as  I  find  the  following  on  the  back  of 
his  last  letter,  in  my  brother's  handwriting :  — 

Replied  on  the  27th,  and  said  in  substance  that  the  only  cause 
justifying  my  resignation  was  the  insufficiency  of  the  salary ;  but 
that  I  had  never  authorized  any  one  to  deny  that  my  regrets  were 
diminished  by  the  state  of  the  court,  —  that  I  could  not  do  so  with 
truth,  and  therefore,  to  prevent  misapprehension,  wrote,  &C.1 

After  all  the  serious  regrets  expressed  by  these  grave  and 
learned  persons,  the  reader  Avill  be  amused  by  a  sally,  which 
came  from  one  whose  brilliant  mind  afterwards  suffered  an 
eclipse,  that  never  passed  away  until  death  released  it  from 
the  frail  tenement  which  had  been  overmastered  by  its 
eager  and  incessant  activity :  — 

FROM  ST.  GEORGE  TUCKER  CAMPBELL,  OF  PHILADELPHIA. 

September  28,  1857. 

MY  DEAR  JUDGE,  —  Is  it  a  fair  question  to  say  why?  Now 
that  you  have  stepped  down  to  the  level  of  your  fellow-craftsman, 
that  indefinite  feeling  of  restraint  is  gone,  and  I  feel  at  liberty  to 
ask  questions. 

I  knew  from  our  conversations  while  you  were  on  the  bench, 
that  you  doubted ;  but  that  was  a  year  since. 

Do  you  return  to  active  practice,  or  the  dignified  retirement  of 
writing  law  books  ?  —  because  I  feel  certain  that  you  cannot  mean 
to  live  without  law. 

Honor  bright,  is  it  politics?  I  hear,  the  Senate.  I  should  be 
glad  of  this,  patriotically  as  well  as  selfishly,  for  then  you  would 
travel  this  way,  and  perchance  we  might  meet  in  Washington.  Do 
you  mean  to  practise  there  ?  Or,  in  fine  (this  letter  won't  reach 
you  till  you  have  left  the  bench),  what  the  devil  do  you  mean  to 
do  ?  It  will  be  a  queer  sensation  to  be  decided  upon,  after  having 
had  the  last  word  for  some  time.  I  am  sincerely  glad  that  you 
have  so  decided.  It  will  be  more  pleasant  to  meet  and  see  you. 
A  judge  is  a  chilly  thing  always  ;  —  if  he  is  not,  he  is  undignified; — • 
the  line  between  is  shady.  Let  me  have  a  word  from  you  at  your 

1  The  words  printed  in  Italics  are  underscored  in  the  original. 


1857.]  RESIGNATION   OF   OFFICE.  263 

leisure,  and  I  look  forward  with  sincere  pleasure  to  the  day  we 
meet  on  the  same  level  again.  With  my  kindest  regards  to  Mrs. 
Curtis,  believe  me, 

Very  sincerely,  Si.G.  TUCKER  CAMPBELL. 

P.  S.    If  you  haven't  resigned,  burn  this  without  reading  it. 
It's  rather  free  to  a  judge. 

Sx.G.  T.  C. 


264  MEMOIR   OF  BENJAMIN   BOBBINS   CURTIS.  [1857 


CHAPTER  X. 

1857-1874. 

Return  to  the  Bar.  —  Death  of  Mrs.  Anna  W.  Curtis.  —  A  National  Repu 
tation. —  A  great  Practice  of  Seventeen  Years.  —  Its  aggregate  Pecuniary 
Results.  —  Some  Opinions  on  Constitutional  and  other  Questions.  —  Ad 
dress  to  Judge  Sprague  on  his  Retirement  from  the  Bench. 

JUDGE  MCLEAN'S  anticipation  that  my  brother  "  might 
feel  a  little  awkward  at  the  bar  "  proved  not  to  be  correct 
as  soon  as  the  trial  was  made  ;  and  whatever  doubts  Judge 
Curtis  may  himself  have  had  were  immediately  dispelled. 
Within  a  week  after  his  resignation  took  effect,  he  received 
seven  retainers  in  important  cases.  He  established  himself 
in  an  office  in  Boston,  in  a  central  position  where  lawyers 
u  most  do  congregate,"  and  having  engaged  an  old  and 
faithful  clerk  who  had  served  him  before  he  became  a  judge, 
he  began  to  lead  the  life  of  a  "  barrister"  in  the  first  week 
of  October,  1857.  Writing  in  the  summer  of  1858  to  Mr. 
Greenough,  his  brother-in-law,  who  was  then  absent  in 
Europe,  he  said  :  — 

I  expect  to  find  it  dull  enough  in  town,  during  so  much  of  the 
summer  as  I  am  to  be  here.  But  as  one  purpose  of  my  return  to 
the  bar  is  to  earn  some  money  for  my  wife  and  children,  I  must 
stay  here  and  work  while  work  is  to  be  had,  and  I  am  able  to  do 
it.  Thus  far  I  have  not  been  disappointed  in  my  expectations,  and 
if  I  have  health  and  no  bad  fortune,  for  the  next  ten  years,  I  can 
place  them  where  I  should  desire  to,  —  not  with  wealth,  which  I  do 
not  desire,  —  but  with  a  competence.  I  wish  I  were  with  you  in 
England  for  three  months.  I  desire  it  above  all  other  mere  grati- 


1857.]  RETURN    TO   THE  BAR.  265 

fications.  Rut  I  feel  no  assurance  that  the  wish  will  ever  be  ful 
filled.  Each  year  I  say  to  myself,  perhaps  I  may  go  next  year, 
but  the  next  year  brings  its  own  incompatibilities.1 

As  affording  some  measure  of  a  very  important  branch 
of  the  practice  on  which  he  entered  in  the  autumn  of  1857, 
I  have  examined  his  Opinion  Books  for  the  whole  period 
after  his  return  to  the  bar.  These  opinions  are  not  brief 
answers  to  specific  questions,  without  the  processes  of  rea 
soning  which  led  to  the  results.  They  are  full  discussions  of 
the  cases,  —  such  discussions  as  would  be  given  by  a  court  in 
pronouncing  judgment.  His  known  judicial  habit  of  mind 
led  parties  and  their  attorneys  to  resort  to  him  as  an  au 
thority,  whose  view  of  their  controversies  would  be  of  great 
value  to  themselves,  and  might  prevent  the  necessity  of 
litigation.  It  often  proved  so ;  for  although  in  the  vast 
number  of  cases  that  were  submitted  for  his  opinion,  during 
the  seventeen  years  of  his  second  period  of  practice,  he  was 
called  upon,  in  a  great  many  instances,  to  defend  as  an  ad 
vocate  the  views  that  he  had  expressed  as  a  counsellor,  in 
many  other  instances  his  written  opinion  settled  the  contro 
versy,  although  it  had  not  been  asked  for  by  both  parties. 
The  examination  which  he  made  of  the  subject  was  so 
thorough,  the  reasoning  was  so  sound,  the  learning  appro 
priate  to  the  question  was  so  accurately  applied,  and  there 
was  so  much  confidence  felt  in  his  fairness  of  mind,  that  his 
opinions  carried  with  them  great  weight. 

No  man  is  infallible  ;  and  it  is  not  meant  to  be  implied 
that  in  the  great  body  of  legal  discussion  which  now  lies  be- 

1  The  tranquillity  and  happiness  of  his  domestic  life  remained  unbroken 
from  the  time  of  his  second  marriage,  in  1846,  until  the  month  of  April, 
1860.  On  the  24th  of  that  month,  Mrs.  Anna  W.  Curtis  died  in  Boston, 
leaving  three  children.  She  had  inherited  from  her  father  (Mr.  Charles 
Pelham  Curtis)  his  calm  and  equable  temperament,  to  which  was  added  a 
firm  and  decided,  though  most  amiable  character.  Her  reading  was  unusu 
ally  large  and  varied,  and  her  musical  talent  and  tastes  had  been  much 
cultivated.  Her  married  life  was  one  of  entire  devotion  to  her  husband  and 
to  the  care  of  his  children. 


266  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1857. 

fore  me  in  Judge  Curtis's  Opinion  Books,  kept  from  October, 
1857,  to  June,  1874,  he  was  always  right  in  his  reasoning 
or  his  conclusions.  But  probably  there  is  no  similar  record 
extant,  concerning  such  a  variety  of  subjects,  arising  in  the 
practice  of  an  American  lawyer,  in  which  so  extensive  a 
field  of  jurisprudence  has  been  covered  by  such  careful  and 
thorough  discussions,  uniformly  based  upon  an  exact  state 
ment  of  the  case  that  was  to  be  considered.  At  first,  the 
applications  for  his  opinion  came  from  his  immediate 
neighborhood.  But  they  soon  began  to  come  from  other 
quarters  of  the  Union ;  showing  that  his  judgment  upon 
important  questions  was  held,  in  communities  where  the 
local  law  would  enter  into  the  treatment  of  the  subject, 
or  where  some  question  of  Federal  jurisprudence  was  in 
volved,  or  the  conflict  of  laws  would  have  to  be  consid 
ered,  in  as  high  estimation  as  it  was  in  his  own  State  or 
city. 

In  these  opinions,  filling  nearly  one  thousand  closely 
written  pages,  of  two  folio  volumes,  and  covering  a  consid 
erable  proportion  of  the  controversies  arising  in  different 
regions  of  the  country,  during  a  period  of  seventeen  years, 
—  some  of  them  relating  to  great  operations  of  public  im 
portance,  and  embracing  questions  of  State  or  Federal 
Constitutional  Law,  and  some  concerning  merely  private 
interests,  —  the  style  in  which  they  are  written  is  uniformly 
the  same.  Lucid,  exact,  logical  argument,  embracing  all 
the  proper  suggestions  of  an  opposing  view,  marks  the 
whole.  While  there  is  no  redundancy,  the  same  condensa 
tion  of  thought  and  expression  that  is  necessary  in  oral 
discussions  at  the  bar,  when  an  advocate  is  limited  by  a 
rule  of  time,  and  in  which  Judge  Curtis  was  so  great  a 
master,  is  not  always  found  in  his  written  opinions  given 
as  a  chamber  counsel,  nor  was  it  always  needed  in  such 
writings.  In  these  discussions,  he  often  enlarges  more  than 
he  would  have  done  at  the  bar ;  and  this  was  done,  because 
the  discussion  was  to  go  into  the  hands  of  others,  to  whom 


1857.]  A  LARGE  PROFESSIONAL   INCOME.  267 

a  more  ample  treatment  of  the  subject  would  be  useful. 
But,  in  general,  these  opinions  are  full  of  the  same  clear 
ness  and  force  of  reasoning,  that  characterized  his  oral 
arguments. 

As  a  source  of  professional  income,  his  written  opinions 
brought  an  important  part  of  his  receipts ;  although  his 
charges  for  these  or  any  other  professional  services  were 
never  immoderately  high.  He  was  aware  that  his  clients 
were,  in  general,  obliged  to  compensate  him  according  to 
his  own  measure  of  the  value  of  his  services  ;  or,  as  he 
once  expressed  it,  that  they  were  at  his  mercy,  in  the 
matter  of  fees.  He  was  therefore  in  the  habit  of  making 
a  careful,  and  even  judicially  fair,  estimate  of  what  it 
was  proper,  under  all  the  circumstances,  that  they  should 
pay.  He  very  rarely  met  with  any  complaint ;  and  he 
did  not  always  require  that  payment  of  any  amount  should 
be  made.  "  I  have  known  him,"  said  a  gentleman  of  the 
Boston  bar,  "in  cases  where  he  had  thought  that  the  judg 
ment  had  fallen  too  hard  upon  his  client,  to  turn  and  relin 
quish  every  dollar  of  his  fee,  in  order  to  soften  the  adverse 
blow,  and  that,  too,  without  a  word,  without  any  open 
demonstration,  and  probably  without  any  body  knowing  it 
except  myself,  his  book-keeper,  and  client."1  Almost  in 
variably,  however,  when  there  were  not  peculiar  circum 
stances  calling  for  such  sacrifices,  whatever  he  named  as  his 
compensation  was  paid  without  any  hesitation. 

Another  large  part  of  his  professional  income  was  of 
course  derived  from  his  practice  as  an  advocate  in  the 
Federal  courts,  and  in  the  courts  of  his  own  and  of  other 
States.  In  the  Supreme  Court  of  the  United  States,  during 
this  period,  he  argued  forty-six  cases,  involving  every  variety 
of  subjects  that  come  into  discussion  in  that  tribunal.2  In 

1  Remarks  of  Hon.  Charles  L.  Woodbury  at  the  meeting  of  the  Boston 
Bar  held  after  the  death  of  Judge  Curtis. 

2  Reported  in  the  volumes  from  the  20th  of  Howard  to  the  19th  of  Wal 
lace  inclusive. 


268  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1857. 

the  Supreme  Court  of  Massachusetts,  in  the  same  period, 
he  made  arguments  in  bane  in  eighty  cases.1 

From  these  various  sources,  a  large  professional  income 
flowed  in  upon  him  with  great  steadiness  after  his  return 
to  the  bar.  Judging  from  all  the  means  that  are  before 
me  for  such  a  computation,  it  appears  that  during  these 
seventeen  years,  from  October,  1857,  to  June,  1874,  his 
aggregate  professional  receipts  were  about  1650,000.  But 
the  fortune  which  he  left  to  his  family  was  much  less  than 
this  amount.  He  always  lived  liberally,  but  without  any 
ostentation,  and  he  was  not  always  fortunate  in  his  invest 
ments.  Yet  his  wish  to  leave  a  competency  to  his  family 
was  fulfilled. 

Instructive  and  important  volumes  might  be  made  by  the 
publication  of  the  opinions  to  which  I  have  referred  in  this 
chapter.  But  many  of  them  relate  to  private  concerns, 
which  it  might  not  be  proper  to  bring  before  the  public, 
since  they  did  not  become  subjects  of  public  litigation.  If, 
therefore,  any  collection  of  them  shall  hereafter  be  pub 
lished,  it  must  be  one  carefully  selected.  There  are  some 
of  them,  however,  which  relate  to  public  and  constitu 
tional  questions,  on  which  Judge  Curtis's  views  will  be 
regarded  as  important,  and  which  I  include  in  the  present 
volume,  as  some  of  the  most  interesting  specimens  of  his 
method  of  treating  such  subjects.  Taken  as  the  comple 
ment  of  his  judicial  opinions  on  constitutional  questions, — 
and  they  lack  only  the  authority  of  judicial  position  to 
enhance  their  value,  —  the  opinions  given  in  his  private 
practice  warrant  a  very  high  estimate  of  his  rank  as  a  con 
stitutional  jurist.  Indeed,  giving  its  proper  scope  to  the 
term  Constitutional  Jurisprudence,  I  do  not  think  that  he 
should  be  regarded  as  less  eminent  or  less  accomplished  in 
that  department  than  he  was  in  any  other. 

1  Embraced  in  the  Reports  of  that  court  from  the  10th  of  Gray  to  the 
112th  of  Massachusetts,  inclusive. 


1858.]  OPINIONS   GIVEN   AT   THE   BAR.  269 

CONSTITUTIONAL  LAW.  — REMOVAL  FROM  OFFICE. 
OPINION. 

My  opinion  has  been  requested  upon  the  question  whether  the 
Governor  of  Massachusetts,  either  with  or  without  the  advice  and 
consent  of  the  Council,  has  power  to  remove  the  "  Superintendent 
of  Alien  Passengers,"  during  the  term  of  three  years  for  which  he 
was  appointed  and  commissioned. 

The  act  of  June  6,  1856,  by  which  this  office  was  created,  pro 
vides,  in  its  first  section,  that  "  the  Governor  and  Council  shall 
upon  the  passage  of  this  act  appoint  a  suitable  person  for  the  term 
of  three  years"  &c. ;  and  the  second  section  enacts,  "  At  the  expira 
tion  of  the  said  term,  and  hereafter,  whenever  a  vacancy  shall 
occur,  there  shall  be  appointed  to  fill  the  vacancy  in  said  board, 
a  person  who  shall  hold  the  office  for  a  term  of  three  years" 

The  Legislature  have  thus  created  an  office,  and  enacted  that  its 

o 

term  shall  be  a  term  of  three  years. 

There  can  be  no  doubt  that  the  Legislature  had  power  to  create 
this  office  arid  prescribe  how  it  should  be  filled  and  upon  what  tenure 
it  should  be  held. 

Not  being  one  of  the  officers  provided  for  in  the  Constitution,  it 
falls  under  the  clause  which  confers  on  the  Legislature  power  "  to 
name  and  settle  annually,  or  provide  by  fixed  laws  for  the  naming 
and  settling,  all  civil  officers  within  the  said  Commonwealth,  the 
election  and  constitution  of  whom  are  not  hereafter  in  this  form  of 
government  otherwise  provided  for;  and  to  set  forth  the  several 
duties  and  limits  of  the  said  civil  and  military  officers,"  &c.  It 
was  at  the  option  of  the  Legislature  in  creating  this  office  and  fix 
ing  its  tenure,  to  make  its  tenure  during  good  behavior,  or  during 
a  fixed  time  absolutely,  or  during  the  pleasure  of  the  Governor ; 
and  it  is  very  clear  that  the  Governor  has  no  power  to  change  the 
tenure  which  the  Legislature  has  fixed.  This  being  so,  it  is  clear 
he  cannot  remove  at  pleasure  an  officer  who,  by  force  of  the  law 
creating  the  office,  holds  for  a  fixed  term  of  years,  and  whose  ten 
ure  is  not  by  law  made  subject  to  his  will.  In  reference  to  such 
offices  as  this,  it  should  be  observed  that  the  Governor  derives  all 
his  powers,  even  his  power  of  appointment,  from  the  law  which 
creates  it.  For  our  State  Constitution  does  not  contain  a  general 
provision,  like  that  in  the  Constitution  of  the  United  States,  con 
ferring  on  the  President  the  power  to  appoint  to  all  officers  estab- 


270  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1858. 

lished  by  act  of  Congress,  unless  Congress  should  enable  the  courts 
of  law  or  heads  of  departments  to  appoint  inferior  officers.  And 
when  the  Governor  exercises  the  power  which  this  law  gives  him, 
he  must,  of  course,  act  in  conformity  with  it,  and  appoint  for  three 
years  ;  and  having  done  so,  his  whole  power  is  exhausted,  until  a 
vacancy  occurs,  by  the  expiration  of  the  term,  or  by  death  or 
resignation. 

I  am  not  aware  that  any  court,  or  any  legislature,  has  ever  con 
sidered  that  it  is  incident  to  appointing  power  to  remove  at  pleasure 
an  officer  required  by  law  to  be  appointed  and  commissioned  for 
a  fixed  term  of  years,  and  not  by  the  terms  of  that  law  subjected 
to  such  removal.  The  great  debite  which  took  place  in  Congress 
in  1789,  which  settled  the  practice  of  the  Federal  government,  pro 
ceeded  upon  the  ground  that  the  appointing  power,  if  not  controlled 
by  law,  had  by  implication  the  power  to  remove.  But  no  support 
was  given  to  the  theory  that,  even  under  the  Constitution  of  the 
United  States,  the  Executive  could  turn  a  tenure  for  a  fixed  term  of 
years  into  a  tenure  during  pleasure ;  and  the  practice,  both  of  Con 
gress  and  of  our  State  Legislature,  has  been,  when  establishing  offices 
to  be  held  for  a  term  of  years,  to  add  unless  sooner  removed,  &c.,  — 
thus  qualifying  the  tenure,  and  admitting  the  necessity  of  such 
qualification  to  enable  the  executive  to  remove. 

In  Avery  v.  Tyringham,  3  Mass.  R.  177,  Chief  Justice  Parsons 
says,  it  is  a  general  rule  that  an  office  is  held  at  the  will  of  either 
party,  unless  a  different  tenure  is  expressed  in  the  appointment,  or 
is  implied  from  the  nature  of  the  office,  or  results  from  ancient 
usage.  In  Ex  parte  Hennen,  lo  Peters,  259,  the  Supreme  Court 
of  the  United  States  said,  all  offices,  the  tenure  of  which  is  not 
fixed  by  the  Constitution,  or  limited  by  law,  must  be  held  either 
during  good  behavior,  or  at  the  will  of  some  department  of  the 
government. 

In  Marbury  v.  Madison,  1  Cranch,  162,  it  was  held  by  the 
Supreme  Court  of  the  United  States,  that,  where  the  law  creating 
an  office  provided  that  the  person  appointed  should  hold  the  office 
for  five  years,  the  officer  was  not  removable  by  the  Executive. 

The  case  of  Iloke  v.  Henderson,  4  Devereux's  R.  1,  contains  a 
very  able  and  instructive  discussion  of  this  subject ;  it  was  there 
held  that  the  tenure  of  an  office  prescribed  by  the  Legislature  was 
part  of  the  right  of  the  incumbent,  of  which  he  could  not  be 
deprived.  In  Smyth  v.  Latham,  9  Bing.  702,  it  was  ruled  by  the 


1858.]  OPINIONS   GIVEN   AT   THE  BAR.  271 

judges  of  England,  on  error,  in  the  Exchequer  Chamber,  that  when 
an  office  is  created  by  a  statute,  the  question  as  to  its  duration  and 
tenure  is  no  other  than  an  inquiry  into  the  meaning  and  intention 
of  the  statute  itself. 

I  think  this  is  as  good  law  here  as  it  is  in  England.  And  that 
where  the  Legislature  have,  as  in  this  case,  shown  a  clear  intention 
to  have  the  tenure  of  the  office  a  term  of  three  years,  and  have  not 
conferred  upon  the  Governor  any  power  to  shorten  the  term,  he 
has  no  such  power  by  any  implication.  Such  an  officer  holds  for  a 
term  of  three  years  by  as  firm  a  title  as  if  the  Constitution  had 
fixed  the  term  of  three  years  as  the  duration  and  limit  of  his  right ; 
for  the  Governor  has  no  more  implied  power  to  disregard  or  qualify 
a  constitutional  law  enacted  by  the  Legislature,  than  to  disregard  or 
qualify  the  fundamental  law  enacted  by  the  people.  And,  to  hold 
for  three  years  is  as  much  a  right  of  an  officer  appointed  to  an 
office  having  that  tenure  by  law,  as  to  hold  during  good  behavior, 
where  that  is  the  legal  tenure.  In  one  case  no  more  than  in  the 
other  is  it  a  tenure  at  the  pleasure  of  the  Executive. 

In  my  opinion,  the  Governor  has  not  the  power  of  removal 
under  the  law  in  question. 

B.  R.  CURTIS. 
April  20,  1858. 

MAKINE  INSURANCE.  —  GENERAL  AVERAGE. 

CASE. 

The  ship  Star  of  Hope  sailed  from  New  York  on  the  10th 
day  of  February,  1856,  bound  for  San  Francisco.  Nothing  ma 
terial  occurred  on  the  voyage  until  the  14th  of  April,  when, 
being  in  latitude  46°  54'  south,  longitude  68°  36'  west,  a  great 
steam  and  smoke  were  discovered  ascending  from  the  fore  and  aft 
hatchways.  Investigation  was  immediately  made,  and  the  conclu 
sion  was  that  the  cargo  was  on  fire.  The  hatches  were  secured, 
and  measures  taken  to  exclude  the  air  from  the  hold,  and  it  was 
decided  to  make  for  the  nearest  port  for  safety.  San  Antonio,  on 
the  coast  of  Patagonia,  being  the  nearest  port,  the  vessel's  course 
was  shaped  therefor.  On  the  18th  of  April,  they  made  the 
land,  and  approached  with  a  signal  for  a  pilot,  and,  the  lead  being 
kept  going,  found  eight,  seven,  six  and  a  half,  five,  and  four  fathoms 
of  water.  No  pilot  appeared,  and  the  master,  under  the  apprehen 
sion  that  the  ship  would  blow  up,  having  a  quantity  of  gunpowder 


272  MEMOIR   OF   BENJAMIN   BOBBINS   CUETIS.  [1858. 

and  spirits  on  board  in  the  hold,  determined  to  run  into  the  harbor 
without  a  pilot.  In  making  the  attempt  the  ship  grounded,  and 
struck  heavily,  and  there  sustained  much  damage. 

The  master  hoped  to  be  able  to  get  into  the  harbor  safely  with 
out  a  pilot,  and  believed  he  probably  could  do  so  ;  but  he  was 
ignorant  of  the  navigation,  found  by  the  lead  that  the  water  was 
shoaling  from  six  to  four  fathoms,  and  was  aware  that  there 
was  danger  that  the  vessel  would  take  the  ground. 

The  question  is  whether  this  stranding  is  to  be  considered  so 
far  voluntary  that  the  damage  which  it  caused  is  a  general 
average  loss. 

OPINION. 

The  master  decided  to  take  the  risk  of  attempting,  without  a 
pilot,  to  run  into  a  place  unknown  to  him,  to  obtain  assistance  to 
extinguish  fire,  which  was  believed  to  threaten  the  speedy  destruc 
tion  of  the  vessel  and  cargo,  and  all  on  board.  It  was  an  act  en 
tirely  out  of  the  usual  course  of  navigation,  and  aside  from  the 
duties  which  devolved  on  the  ship-owners,  as  carriers  of  the  cargo 
on  that  voyage.  It  was  an  attempt  to  obtain  safety  from  an 
impending  peril  by  the  use  of  extraordinary  means  ;  and  it  is  not 
to  be  confounded  with  the  hazards,  which  ship-owners  undertake, 
of  carrying  such  sail,  and  steering  such  courses,  and  making  such 
manoeuvres,  while  in  the  prosecution  of  the  voyage,  as  its  exigencies 
may  require. 

The  only  ground  upon  which  I  can  suppose  the  stranding  can 
be  denied  to  be  voluntary  in  contemplation  of  law,  is  that  the 
master  hoped  and  expected  that  he  might  get  in  without  taking 
the  ground,  and  therefore  the  stranding  was  unintentional.  But 
the  master's  hopes  and  expectations  were  one  thing,  his  intention 
another.  lie  decided  to  attempt  to  get  into  the  harbor.  He  in 
tended  to  take  the  consequences  of  that  attempt.  He  hoped  those 
consequences  would  not  be  injurious  to  the  vessel ;  but  whatever 
they  might  prove  to  be,  he  voluntarily  encountered  them.  And 
when  one  of  them  proved  to  be  stranding,  his  hope  that  it  would 
not  happen  does  not  prevent  the  stranding  from  being  one  of  the 
consequences  which  he  voluntarily  encountered. 

It  is  true,  that  if,  while  seeking  a  port  of  necessity,  a  peril, 
wholly  unanticipated,  and  not  necessarily  arising  from  the  change 
of  course,  casually  falls  on  the  vessel,  without  human  choice  or 


1858.]  OPINIONS   GIVEN  AT   THE  BAK.  273 

agency,  it  must  be  borne  by  the  vessel.  But  this  is  not  such  a 
case.  The  peril  of  stranding  by  running  into  an  unknown  port 
without  a  pilot,  when  the  lead  shows  the  water  is  shoaling  from 
six  to  four  fathoms,  is  necessarily  involved  in  an  attempt  to  enter ; 
the  sanguine  expectations  of  the  master  that  he  may  escape,  cannot 
change  its  character  into  a  mere  casualty,  nor,  when  such  a  volun 
tary  attempt  results  in  an  Actual  stranding,  can  it  be  said  to  have 
been  independent  of  human  agency.  It  was  human  agency  which 
made  the  attempt,  and  the  attempt  necessarily  involved  the  peril. 
I  think  it  now  settled,  by  the  cases  of  The  Col.  Ins.  Co.  v.  Ashby 
et  «/.,  13  Peters,  331,  and  Barnard  v.  Adams,  10  How.  305,  that 
it  is  not  required  that  the  voluntary  act  should  necessarily  inflict 
a  loss,  nor  that  the  master  should  intend  to  destroy,  or  even  injure, 
the  particular  subject. 

It  is  enough  that  a  particular  subject,  as  in  this  case  the  ship,  is 
voluntarily  exposed  to  a  distinct  and  extraordinary  peril,  for  the 
general  benefit.  The  voluntary  sacrifice  is  made  when  the  ship 
is  intentionally  exposed  to  such  a  peril.  What  befalls  thereon 
are  the  consequences  of  that  sacrifice ;  and  be  they  more  or  less 
than  was  anticipated,  they  are  all  voluntarily  suffered,  in  judgment 
of  law. 

This  is  well  illustrated  by  the  case  of  goods  put  into  lighters  to 
relieve  a  stranded  vessel.  The  intention  is  not  to  destroy  or  injure 
them.  All  concerned  may  expect  them  to  be  safe.  But  all  con 
cerned  intend  to  expose  them  to  a  distinct  and  extraordinary  peril 
by  placing  them  on  board  lighters ;  and  if,  contrary  to  expecta 
tion,  they  are  lost  or  damaged,  they  are  to  be  paid  for  in  general 
average. 

My  opinion  is,  that  the  attempt  to  run  into  San  Antonio  without 
a  pilot,  exposed  this  vessel  to  the  peril  of  stranding  ;  that  this  was 
an  extraordinary  peril,  assumed  for  the  general  benefit ;  that  it  is 
not  inferable  that  it  was  an  unknown  peril,  since  it  is  not  conceiv 
able  that  any  competent  master  could  have  failed  to  recognize  it 
as  one  of  the  risks  of  his  attempt  to  get  into  an  unknown  port 
without  a  pilot,  with  such  soundings  as  he  appears  to  have  had  ; 
that  his  hope,  or  even  expectation,  of  avoiding  the  peril  does  not 
change  the  character  of  the  stranding  which  actually  resulted  from 
his  attempt ;  and  that  the  intention  to  encounter  that  peril  rendered 
all  its  actual  consequences  voluntary  sacrifices. 

B.  R.  CURTIS. 

February  2,  1858. 

VOL.  i.  18 


274  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1858. 

FIRE  INSURANCE. 

OPINION. 

My  opinion  has  been  requested  upon  the  question  of  the  valua 
tion  to  be  put  by  Messrs.  Little,  Brown,  &  Co.  upon  the  printed 
sheets  of  books  destroyed  or  damaged  by  fire  in  their  store-house 
at  Cambridge. 

The  policies  contain  no  valuation,  and  no  special  clauses  to 
afford  a  rule  of  valuation,  differing  from  that  prescribed  by  the 
law.  The  object  of  the  contract  is  to  indemnify  the  assured ;  and 
the  law  adjudges  this  object  to  be  accomplished,  if  the  insurer  pays 
to  the  insured  an  amount  equal  to  the  value  of  the  subject  insured, 
as  its  value  was  when  the  risk  was  taken.  This  value  is  ordinarily 
measured  by  the  rule  that  a  thing  is  worth  what  it  can  be  sold  for; 
and  the  market  value  is  the  standard  by  which  the  amount  to  be 
paid  is  usually  measured. 

After  an  attentive  consideration  of  this  case,  I  can  perceive  no 
sufficient  reason  why  the  rule  that  a  thing  is  worth  to  the  owner 
its  market  price,  should  not  be  applied  to  measure  the  amount  of 
this  loss.  And  I  am  of  opinion  that  it  would  be  applied  by  a  court 
of  law.  These  printed  books,  in  the  form  of  folded  sheets,  were  in 
a  condition  to  be  put  into  the  market  at  established  prices.  It 
may  be  suggested  that  they  could  not  have  been  offered  for  sale, 
in  the  quantities  burnt,  without  reducing  the  market  price.  This 
must  often  be  true  where  a  large  quantity  of  an  article  is  burnt. 
But  I  do  not  think  such  a  suggestion  from  underwriters  was  ever 
allowed  to  affect  the  valuation. 

It  would  be  highly  inexpedient,  as  well  as  unjust,  to  allow  it  to 
do  so.  It  would  be  inexpedient,  because  it  would  substitute  in 
place  of  a  known  standard,  viz.  the  actual  market  price,  mere 
speculations  concerning  the  effect  upon  that  price  of  putting  a  large 
quantity  of  the  article  into  the  market.  And  it  would  be  unjust, 
because,  if  not  burned,  there  is  no  ground  for  saying  the  owner 
would  thus  have  forced  sales  and  reduced  the  price. 

Neither,  as  it  seems  to  me,  should  the  fact,  that  Messrs.  Little, 
Brown,  &  Co.  were  the  manufacturers  change  the  rule  which 
makes  the  market  value  the  standard  of  the  valuation,  as  between 
insurer  and  insured. 

If  they  by  the  use  of  their  capital  and  skill  have  produced  an 
article  which  sells  in  the  market  for  more  than  it  cost  them,  I  do 


1858.]  OPINIONS    GIVEN   AT    THE   BAR.  275 

not  percev  v^e  why  they  should  not  be  indemnified  for  its  loss  by  re 
ceiving  what  it  would  have  sold  for.  If  the  article  were  given  to 
them,  and  so  cost  them  nothing,  it  would  hardly  be  asserted  that 
nothing  should  be  paid  by  the  underwriters.  The  cost  of  the  sub 
ject  of  insurance  is  of  no  importance  in  fixing  its  valuation,  save  in 
those  cases  where  the  cost  indicates  the  market  value. 

Mr.  Phillips  (Vol.  II.  p.  40),  after  laying  down  the  rule,  "  the 
amount  of  insurable  interest  in  goods  is  their  market  value  at  the 
time  and  place  of  the  commencement  of  the  risk,"  says  their  cost 
is  the  most  satisfactory  proof  of  their  value,  in  case  they  are  pur 
chased  near  the  time  when  the  risk  commences.  If  they  are  not 
purchased,  but  manufactured,  the  cost  of  making  them  has  never 
been  deemed  the  measure  of  their  value.  It  would  be  not  only 
an  arbitrary,  but  a  generally  false  assumption,  to  establish  such  a 
measure.  For  if  the  value  of  manufactured  products  did  not  gen 
erally  exceed  their  cost,  who  would  make  them  ? 

The  distinction  between  articles  purchased  and  made  is  so  plain, 
that  it  seems  not  to  have  been  thought  necessary  to  point  it  out. 
But  Mr.  Stevens  does  so  incidentally  :  "  Goods  which  are  either 
of  the  proprietor's  own  manufacture,  or  have  been  brought  from 
distant  places  to  the  port  of  shipping,  where  there  is  no  regular  sale 
for  them,  merely  for  the  purpose  of  being  forwarded  from  thence, 
must  not  be  valued  according  to  the  price  for  which  they  might  be 
sold  at  the  place  of  loading,  but  their  value  at  the  place  where  they 
came  from,  together  with  the  expenses,  must  be  the  basis  of  the 
value  to  be  insured." 

My  opinion  is  that  the  insurable  interest  of  Messrs.  Little, 
Brown,  &  Co.  in  these  books  was  their  market  value  at  the  time 
the  risk  attached. 

B.  R.  CURTIS. 
BOSTON,  April  10,  1858. 

PROCESS   IN  ADMIRALTY. 
OPINION. 

My  opinion  has  been  requested  upon  the  question  whether, 
upon  a  decree  in  personam  in  the  District  Court  of  the  United 
States  for  the  District  of  Ohio,  (there  being  no  rule  of  that  court 
on  the  subject,)  an  execution  may  issue,  commanding  a  levy  on  the 
lands  of  the  respondent.  The  process  act  of  May  19,  1828,  sect.  3 


276  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [I860. 

(4  Stats,  at  Large,  281),  provides  that  writs  of  execution  upon 
decrees  rendered  in  any  of  the  courts  of  the  United  States  shall 
be  the  same  in  substance  in  each  State  as  those  then  used  in  such 
State,  saving  to  the  courts  in  those  States  where  there  are  not 
courts  of  equity  the  power  to  prescribe  the  mode  of  executing 
their  decrees  in  equity. 

By  the  act  of  August  23,  1842,  sect.  6  (5  Stats,  at  Large,  518), 
the  Supreme  Court  is  empowered  to  regulate  "  the  whole  practice" 
of  the  District  and  Circuit  Courts. 

By  the  2  Lgt  Admiralty  Rule,  the  Supreme  Court  has  regu 
lated  the  practice  of  the  District  Courts  as  respects  the  execution 
of  decrees  for  the  payment  of  money ;  and  has  empowered  those 
courts  to  issue  writs  of  fieri  facias,  to  be  levied  on  the  goods  and 
chattels  of  the  defendant ;  but  no  authority  is  given  to  issue  writs 
of  levari  facias  to  be  levied  on  lands. 

The  argument  that  expressio  unius  exclusio  alferius,  seems  to 
me,  in  this  case,  to  be  irresistible.  For  how  can  this  rule  be  said 
to  regulate  the  practice  of  the  District  Courts,  if  the  libellant, 
instead  of  proceeding  to  execute  the  decree  in  the  mode  prescribed 
by  the  rule,  may  proceed  in  a  totally  different  manner. 

In  my  opinion,  this  rule  was  designed  as  a  substitute  for  the 
authority  contained  in  the  third  section  of  the  act  of  1828,  if  that 
extends  to  admiralty  decrees,  and  not  as  a  supplement  thereto ; 
and  consequently  the  present  power  of  District  Courts  to  execute 
their  admiralty  decrees  is  found  in  this  rule,  and  nowhere  else. 

I  think  it  extremely  doubtful  whether  the  third  section  of  the 
act  of  1828  was  designed  to  cover  the  execution  of  admiralty 
decrees.  The  provision  for  the  execution  of  decrees  in  equity  in 
those  States  having  no  courts  of  equity,  and  the  absence  of  any 
special  provision  for  the  execution  of  decrees  in  admiralty  when  it 
was  known  that  no  State  could  have  courts  of  admiralty,  tends 
strongly  to  show  that  the  decrees  there  spoken  of  were  decrees  in 
equity  only  ;  and  that  the  execution  of  admiralty  decrees  was  in 
tended  to  be  left  to  the  second  section  of  the  act  of  1792  (1  Stats. 
at  Large,  276).  This  enacted  that  executions  in  suits  of  admiralty 
and  maritime  jurisdiction  should  be  according  to  the  principles, 
rules,  arid  usages  of  courts  of  admiralty,  subject  to  alteration  by 
the  Supreme  Court.  I  take  it  to  be  clear  that,  by  the  rules  and 
usages  of  courts  of  admiralty,  no  execution  ever  issued  against 
lands. 


I860.]  OPINIONS   GIVEN   AT   THE   BAR.  277 

It  is  said  by  Doctor  Browne  (1  Browne's  Civ.  and  Ad.  Law, 
361  n.),  that  a  stipulation  in  the  admiralty  does  not  bind  lands  ; 
and  this  seems  to  be  admitted  by  Doctor  James  in  arguing  Grun- 
way  v.  Barker,  Godbolt,  260,  for  he  justifies  the  insertion  of  here- 
des  in  the  stipulation,  as  meaning  personal  representatives. 

If  there  was  no  authority  for  executing  an  admiralty  decree  by 
process  against  lands,  under  the  act  of  1792,  and  the  act  of  1828 
was  not  intended  to  apply  to  such  decrees  (and  I  am  strongly  in 
clined  to  this  view),  then  it  is  certain  there  is  no  power  residing  in 
a  court  of  admiralty  to  issue  a  levari  facias,  or  any  other  process 
against  lands. 

But  I  prefer  to  rest  my  opinion  on  the  other  ground,  viz.  that 
the  21st  Rule  was  designed  to  cover  the  whole  subject,  and  that 
alone  is  the  present  regulation  respecting  the  execution  of  the  ad 
miralty  decrees  of  the  District  Courts. 

Judge  Conklin  in  his  Practice,  p.  775,  was  of  this  opinion. 

B.  R.  CURTIS. 
June  26,  1860. 

Accord  Ward  v.  Chamberlain,  9  Am.  Law  Register,  171,  in 
reference  to  which  case  the  above  opinion  was  taken  by  one  of  the 
counsel. 

CONSTITUTIONAL  LAW. 
CASE. 

Constitution  of  the  State  of  Missouri,  Art.  IV.  Sect.  6. 

"  The  Governor  shall  have  power  to  remit  fines  and  forfeitures, 
and,  except  in  cases  of  impeachment,  to  grant  reprieves  and 
pardons." 

Revised  Statutes  of  Missouri,  1855,  Chap.  XVI. 

BANKING  —  ILLEGAL  —  CURRENCY. 

Section  4.  "  No  corporation  within  the  limits  of  this  State  (the 
Bank  of  the  State  of  Missouri  and  its  branches  inclusive),  money- 
broker,  or  exchange-dealer,  shall  pass  or  receive,  within  the  limits 
of  this  State,  any  bank-note  or  other  paper  currency  of  any  kind, 
promising  or  ordering  the  payment  of  money  or  other  thing,  of  less 
denomination  than  five  dollars.  Provided,  however,  that  said 
money-brokers  and  exchange-dealers  may  buy,  take,  and  receive 


278  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [I860. 

such  bank-notes,  post  notes,  and  currency  for  the  purpose  of  send 
ing  the  same  out  of  the  State." 

Sect.  9.  "  The  charters  of  all  corporations  within  the  limits  of 
this  State  (the  Bank  of  the  State  of  Missouri  and  its  branches  in 
clusive),  violating  or  evading  any  of  the  provisions  of  this  act,  shall 
be  forfeited  for  any  such  violation  or  evasion ;  and  the  fact  of  the 
forfeiture,  or  any  violation  or  evasion  of  this  act,  or  any  part 
thereof,  may  be  pleaded  in  bar  to  any  suit  brought  by  them,  and, 
if  denied,  the  trial  of  the  question  of  such  forfeiture,  violation,  or 
evasion  shall  be  adjourned,  under  the  direction  of  the  court,  and 
change  of  venue  awarded,  upon  the  application  of  the  defendant,  to 
some  county  in  which  such  corporation  is  not  situate." 

OPINION. 

The  first  question  is,  whether  the  above-recited  provision  of  the 
Constitution  of  Missouri  empowers  the  Governor  to  waive  a  for 
feiture  of  its  charter,  which  has  been  incurred  by  a  corporation 
created  by  the  Legislature  by  breach  of  either  an  express  or  im 
plied  condition  of  the  legislative  grant ;  and  if  this  general  question 
can  be  answered  in  the  affirmative,  the  inquiry  remains  whether  the 
forfeiture  can  be  waived  by  the  Governor  in  this  particular  case. 

I  think  the  words  of  the  Constitution  were  designed  to  describe 
fully  the  power  to  remit  penalties  which  might  be  incurred  by  the 
breach  of  penal  laws,  but  were  not  intended  to  authorize  the  Gov 
ernor  to  affect  the  title  of  the  State  to  civil  remedies  for  enforcing 
its  title  to  money  or  property,  or  rights  corporeal  or  incorporeal. 

Thus,  if  a  grant  of  land  should  be  made  on  a  condition  for  breach 
of  which  the  title  granted  was  to  be  forfeited,  this  would  not,  in 
my  judgment,  be  such  a  forfeiture  as  was  contemplated  by  the 
Constitution.  So  if  an  incorporeal  right,  as  to  take  tolls  or  the  like, 
were  granted  on  a  condition,  I  do  not  think  the  Governor  could 
waive  a  breach  of  the  condition. 

The  determination  of  a  title  by  breach  of  a  condition,  reserved 
in  the  grant,  though  often  called  a  forfeiture,  and  in  many  cases 
treated  as  such  by  courts  of  equity,  under  their  jurisdiction  to 
relieve  against  penalties  and  forfeitures,  is  clearly  distinguishable 
from  that  class  of  naked  forfeitures  which  are  enacted  merely  as 
punishments. 

The  former  are  created  by  virtue  of   the  disposing  power  of  the 


I860.]  OPINIONS   GIVEN   AT   THE   BAK.  279 

grantor,  and  are  a  species  of  control  over  the  title  which  he  reserves 
to  himself  when  he  makes  the  grant,  and,  being  assented  to  by  the 
grantee  through  the  acceptance  of  the  grant,  they  are  the  result  of 
a  compact  between  the  parties ;  while  the  latter  are  created  by 
the  legislative  will,  qualify  no  grant,  afford  no  remedy  for  the 
breach  of  any  compact,  but  are  naked  penalties  for  the  punishment 
of  offences  against  the  public. 

The  breach  by  a  corporation  of  a  condition  expressed  in  its  char 
ter,  or  implied  by  law  from  its  provisions  and  acceptance,  whereby 
the  charter  is  forfeited,  and  the  title  to  its  incorporeal  rights  is 
either  ipso  facto  terminated,  or  rendered  liable  to  be  seized  to  the 
use  of  the  State  by  proper  legal  proceedings,  seems  to  me  to  come 
clearly  within  the  first-mentioned  class  of  forfeitures. 

Such  conditions  are  qualifications  or  restrictions  upon  the  title 
to  the  things  granted,  reserved  by  the  grantor  in  pursuance  of  his 
right  of  disposal,  assented  to  by  the  grantee,  and  so  resulting  from 
a  compact,  and  capable  of  being  enforced  by  the  grantor,  by  civil 
remedies  appropriate  to  the  nature  of  the  things  granted. 

It  has  been  repeatedly  held,  in  the  State  of  Missouri,  that  a  writ 
of  quo  warranto  is  within  the  meaning  of  the  Constitution  of  that 
State,  and  that  an  information  in  the  nature  of  a  quo  warranto 
comes  within  the  same  class  of  proceedings.  (3  Mo.  278  ;  4  Ib. 
302;  8  Ib.  330.) 

And  though  there  has  been  some  diversity  of  decision  upon  the 
point,  it  seems  to  me  this  decision  is  clearly  correct.  At  all  events, 
I  suppose  the  law  of  that  State  is  so  settled. 

In  The  People  v.  Phoenix  Bank,  24  Wend.  431,  it  was  held  by 
the  Supreme  Court  of  New  York,  that,  when  a  corporation  was 
created  by  the  Legislature,  a  forfeiture  could  not  be  pardoned  by 
the  Governor,  but  only  by  the  power  which  made  the  original 
grant.  And  it  is  said,  and  I  think  correctly,  that  though  the  king 
can  pardon  a  forfeiture  of  a  charter  which  he  has  created,  he  has 
no  such  power  in  reference  to  corporations  created  by  act  of 
Parliament. 

But  if  I  were  of  opinion  that,  in  general,  the  Governor  of  Mis 
souri  could  waive  a  forfeiture  of  a  charter  granted  by  the  Legisla 
ture,  so  as  to  bar  the  State  of  its  remedy  by  an  information  in  the 
nature  of  a  quo  warranto,  I  should  still  think  it  could  not  be: 
effectually  done  in  this  particular  case. 

There  seems  to  be  a  settled  and  a  reasonable  distinction  between 


280  MEMOIR    OF   BENJAMIN    BOBBINS   CURTIS.  [1860. 

cases  in  which  the  breach  of  a  condition  enabled  the  grantor  to  re 
vest  the  title  in  himself  by  proper  proceedings,  and  cases  in  which 
the  breach  of  a  condition  ipso  facto  determines  the  title.  To  the 
latter  class  of  cases  the  doctrine  of  waiver  of  the  breach  does  not 
apply.  People  v.  Manhattan  Company,  9  Wend.  351  ;  State  v. 
Fourth  Turnpike,  15  N.  H.  Rep.  162. 

In  general,  the  breach  of  a  condition  of  its  charter  only  subjects 
the  corporation  to  proceedings  by  the  State  to  have  the  forfeiture 
declared  and  the  franchises  seized  to  the  use  of  the  State,  and  can 
not  be  taken  advantage  of  collaterally,  nor  by  private  persons. 
But  this  law  expressly  provides  that  any  private  person  sued  by 
the  corporation  may  plead  "  the  fact  of  forfeiture,"  and  the  venue  is 
to  be  changed  to  obtain  a  proper  jury  to  try  the  issue. 

By  "the  fact  of  forfeiture  "  cannot  be  meant  a  judgment  in  quo 
warranto,  for  a  plea  of  such  a  judgment  would  not  be  triable  by  a 
jury.  Besides,  after  such  a  judgment,  the  corporation  can  prosecute 
no  suit;  and  the  provision  that  a  private  person  sued  might  plead 
such  a  judgment,  would  be  merely  superfluous.  And,  unless  the 
forfeiture  so  pleaded  results  from,  and  is  perfect  by  reason  of,  the 
breach  of  the  law,  so  that  ipso  facto  the  charter  is  forfeited,  it 
is  difficult  to  see  how  "  the  fact  of  forfeiture  "  can  be  pleaded  at 
all.  Otherwise,  it  would  not  be  "  the  fact  of  forfeiture,"  but  merely 
a  liability  to  forfeiture  on  a  judicial  finding  of  the  breach  of  con 
dition,  to  be  followed  by  a  judgment,  and  execution  seizing  the 
franchises,  which  would  be  capable  of  being  pleaded. 

I  think,  therefore,  there  is  strong  reason  to  believe  that  the  in 
tention  of  the  Legislature  to  have  the  act  in  question,  when  done 
by  a  corporation,  operate  ipso  facto  as  a  forfeiture,  does  sufficiently 
appear  ;  and  in  such  a  case  the  forfeiture  could  not  be  waived  so 
as  to  restore  the  existence  of  the  corporation. 

But,  aside  from  this,  the  act  gives  to  every  private  person  an 
absolute  right  to  plead  the  fact  of  forfeiture  as  a  full  defence  to 
any  suit  brought  by  the  corporation. 

That  such  a  private  right  cannot  be  affected  by  the  pardoning 
power,  is  an  ancient  and  established  doctrine  of  the  common  law. 
3  Inst.  236  ;  Bac.  Abr.  Pardon,  B.  Chief  Justice  Marshall  said, 
concerning  this  power :  "As  the  power  has  been  exercised  from 
time  immemorial,  by  the  executive  of  that  nation  whose  language  is 
our  language,  and  to  whose  judicial  institutions  ours  bear  a  close 
resemblance,  we  adopt  their  principles  respecting  the  operation 


I860.]  OPINIONS    GIVEN   AT   THE   BAR.  281 

and  effect  of  a  pardon  ;  and  look  into  their  books  for  the  rules  pre 
scribing  the  manner  in  which  it  is  to  be  used  by  the  person  who 
would  avail  himself  of  it."  l 

Though  the  language  of  the  Constitution  of  Missouri,  quoted  in 
the  case  stated,  is  comprehensive,  it  certainly  does  not  confer  on 
the  Governor  more  extensive  powers  than  belong  to  the  Crown  in 
England.  Lord  Coke  says  (3  Inst.  233)  :  "  A  pardon  is  a  work  of 
mercy,  whereby  the  king,  either  before  attainder,  sentence,  or 
conviction,  or  after,  forgiveth  any  crime,  offence,  punishment,  exe 
cution,  right,  title,  debt,  or  duty,  temporal  or  ecclesiastical."  And 
as  it  has  been  settled  there,  for  many  centuries,  that  this  pardoning 
power  can  affect  no  private  right,  so  I  think  the  power  conferred 
on  the  Governor  of  Missouri  cannot  take  away  the  right  to  this 
plea  of  forfeiture  conferred  by  law  upon  all  those  sued  by  the 
corporation. 

B.  R.  CURTIS. 
August,  1860. 

The  following  opinion  relates  to  the  question  of  a  remedy 
for  a  branch  of  the  Cayuga  tribe  of  Indians,  seated  in 
Canada,  to  enforce  their  claims  to  an  annuity  pledged  to 
their  tribe  by  the  State  of  New  York. 

OPINION. 

1st.  Can  any  proceedings  be  taken  before  the  Supreme  Court  of 
the  United  States,  for  the  recovery  of  the  arrears  of  the  annuity, 
and  for  securing  its  continuance  as  a  matter  of  right  ? 

The  second  section  of  the  third  article  of  the  Constitution  of  the 
United  States  grants  to  the  Supreme  Court  original  jurisdiction 
over  controversies  between  a  State  and  foreign  states,  citizens  or 
subjects. 

By  an  amendment,  jurisdiction  over  controversies  between  a 
State  and  citizens  or  subjects  of  a  foreign  state,  was  withdrawn 
from  the  court.  To  sustain  a  suit  against  the  State  of  New  York 
the  matter  in  controversy  must  be  of  sucli  a  nature  as  to  be  a  fit 
subject  of  judicial  cognizance  and  redress,  and  the  party  complain 
ing  must  be  a  "  foreign  state  "  within  the  meaning  of  those  words 
in  the  Constitution. 

Upon  the  first  of  these  requirements  no  difficulty  is  perceived. 

1  United  States  v.  Wilson,  7  Peters,  150. 


282  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1SCJ. 

To  enforce  the  performance  of  a  contract  to  pay  an  annuity, 
whether  perpetual  or  for  a  term  of  years,  or  of  uncertain  duration 
depending  on  contingent  events,  and  to  apportion  its  payment 
among  those  justly  entitled  thereto,  are  strictly  subjects  of  judicial 
cognizance,  and  the  judicial  power  is  sufficient  to  afford  the  needful 
redress. 

In  respect  to  the  other  requirement,  that  a  foreign  state  should 
be  the  party  complainant,  more  difficulty  is  felt. 

In  the  case  of  The  Cherokee  Nation  against  the  State  of  Geor 
gia,  reported  in  the  fifth  volume  of  Mr.  Peters's  Reports,  the  ques 
tion  was  directly  presented  to  the  Supreme  Court,  whether  the 
Cherokee  nation  could  sue  as  a  foreign  state  ;  and  it  was  decided 
they  could  not. 

A  majority  of  the  judges  held  that  the  Cherokee  nation  were 
a  distinct  political  society,  capable  of  managing  their  own  affairs, 
including  some  of  those  which  appertain  to  its  own  government,  and 
so  might  be  deemed  to  be  in  some  sense  a  state ;  though  this  was 
denied  by  Justices  Johnson  and  Baldwin.  But  five  out  of  seven  of 
the  judges  decided  that  the  Cherokee  nation,  being  seated  within 
the  territorial  limits  of  the  United  States,  and  in  a  dependent  con 
dition,  could  not  be  deemed  a  foreign  state. 

Since  that  decision,  no  question  directly  affecting  the  present 
inquiry  has  arisen  in  the  Supreme  Court. 

After  an  attentive  consideration  of  the  history  and  present  con 
dition  of  that  part  of  the  Cayuga  tribe  or  nation  of  Indians  now 
seated  in  Canada,  so  far  as  their  history  and  condition  have  been  laid 
before  me,  or  are  within  my  own  investigations,  I  am  of  opinion 
they  are  not  competent  to  sue,  in  the  name  of  their  tribe  or  nation, 
as  a  foreign  state,  in  the  Supreme  Court  of  the  United  States. 

Assuming,  what  is  settled  in  the  case  of  the  Cherokee  nation,  that 
the  words  "  foreign  state,"  in  this  clause  of  the  Constitution,  were  not 
intended  to  include  any  Indian  nation  within  the  territorial  limits  of 
the  United  States,  I  think  there  are  strong  reasons  to  conclude,  that 
the  same  words  were  not  designed  to  include  Indian  nations  or  tribes 
residing  within  the  dominions  of  the  sovereign  of  Great  Britain,  in  a 
condition  which  resembles  a  state  of  pupilage,  and  dependent  on  the 
will  of  that  sovereign  for  such  powers  and  privileges  as  they  may 
be  permitted  and  enabled  to  enjoy;  —  among  which  powers,  I  sup 
pose  it  must  be  conceded,  is  not  included  the  rightful  authority  to 
act  as  a  foreign  state  by  entering  into  negotiations  with  the  United 


I860.]  OPINIONS   GIVEN   AT   THE   BAR.  283 

States,  forming  alliances  or  treaties  with  them,  holding  themselves 
responsible  for  wrongs  done  to  the  government  or  citizens  of  the 
United  States,  claiming  redress  for  invasions  of  their  territory,  or 
other  infractions  of  their  rights  by  the  United  States,  or  by  those 
for  whose  conduct  the  government  of  the  Union  is  responsible  to 
foreign  nations. 

In  all  things  which  appertain  to  accountability  for  wrongs  done 
to  the  United  States  and  redress  of  grievances  suffered  from  the 
United  States,  or  its  citizens,  I  suppose  it  to  be  clear  that  all  the 
Indian  tribes  in  North  America,  out  of  the  limits  of  the  United 
States,  are  subject  to  the  will  of  the  government  of  Great  Britain, 
which,  under  all  circumstances,  would  act  for  them,  as  for  any  other 
community  within  the  empire,  according  to  the  dictates  of  its  own 
policy.  And,  as  it  would  not  be  admissible  for  the  political  power 
of  the  United  States  to  treat  an  Indian  tribe  seated  in  Canada  as 
a  foreign  nation,  so  neither  can  the  judicial  power  treat  them  as  a 
foreign  nation,  and  allow  them  to  sue,  in  that  capacity,  in  the  courts 
of  the  Union. 

But  if  this  were  not  universally  true,  there  would  be  great  dif 
ficulties  in  the  way  of  an  admission  that  the  part  of  the  Cayuga 
tribe  or  nation  of  Indians  now  seated  in  Canada  are  to  be  deemed 
a  foreign  nation,  capable  of  suing  in  that  capacity  in  the  Supreme 
Court.  Without  going  into  details,  it  may  be  mentioned  that 
neither  the  United  States  nor  the  government  of  Great  Britain 
have  ever  treated  this  band  as  a  separate  and  independent  nation 
for  any  purpose. 

2d.  But  the  question  still  remains,  whether  a  suit  may  not  be 
brought  in  the  Supreme  Court  of  the  United  States  in  the  name 
of  her  Majesty  the  Queen  of  Great  Britain,  etc.,  in  behalf  of  the 
Cayugas,  to  enforce  their  claim. 

Upon  a  question  some  of  the  elements  of  which  are  of  novel 
impression,  it  would  not  become  me  to  express  a  confident  opinion. 
But  after  an  attentive  consideration  I  think  such  a  suit  may  be 
maintained. 

The  right  to  receive  an  annual  payment,  in  consideration  for  a 
transfer  of  their  lands,  belongs  to  a  tribe  or  nation  of  Indians,  who 
occupy  a  portion  of  her  Majesty's  territory,  and  who,  while  they 
are,  for  some  purposes,  a  separate  political  community,  are  also  in 
a  state  of  pupilage,  resembling  the  relation  of  a  ward  to  a  guardian. 
Their  rights  and  claims  are  under  the  care  and  protection  of  the 


284  MEMOIR  OF   BENJAMIN   BOBBINS   CURTIS.  [1860. 

Crown,  upon  principles,  and  by  reason  of  causes,  which  have  been 
long  in  operation  in  the  United  States,  and  which  must  be  felt  and 
acknowledged  here.  And  if  the  sovereign  should  think  fit  to  act 
as  their  trustee,  in  enforcing  a  claim  of  this  nature  in  a  court  of 
justice,  I  believe  the  right  to  do  so  would  be  acknowledged. 

In  case  such  a  course  should  be  deemed  suitable  and  proper,  it 
would  be  important  for  the  Cayugas,  acting  through  their  recog 
nized  and  competent  authorities,  to  prefer  a  petition  to  the  Crown 
to  take  cognizance  of  their  claims,  and  act  in  their  behalf  in  refer 
ence  thereto ;  and  to  this  end,  that  a  formal  transfer  should  be  made 
to  the  Crown  of  the  agreements  between  the  State  of  New  York 
and  the  Cayuga  nation  upon  which  the  present  claims  depend. 

What  is  said  above  answers  the  second  question  proposed. 

3d.  In  answer  to  the  third  question  I  have  only  to  say,  respecting 
the  merits  of  the  claim,  that  I  concur  in  opinion  with  the  Secretary 
of  State  and  other  officers  of  the  State  of  New  York,  composing 
the  board  to  whom  the  petition  of  the  Indians  was  referred  by  the 
Legislature  of  that  State  in  the  year  1849,  whose  report  is  among 
the  papers  submitted  to  me.  I  believe  their  conclusions  and  the 
reasons  on  which  they  rested  are  sound  and  just. 

I  should  hope  that  a  renewed  presentation  of  this  claim  to  the 
Legislature  of  New  York  would  be  successful.  If  not,  I.  know  of 
no  remedy  other  than  the  one  I  have  indicated. 

B.  R.  CURTIS. 

April,  1860. 

SCRIP  OF  A  MUNICIPAL  CORPORATION  PAYABLE    TO 
THE   HOLDER. 

OPINION. 

A  certificate  of  the  loan  made  on  the  credit  of  the  city  of 
Augusta  in  the  State  of  Maine,  under  the  authority  of  an  act  of 
the  Legislature  of  that  State,  entitled,  "  An  Act  to  authorize  certain 
cities  and  towns  to  grant  aid  in  the  construction  and  completion  of 
the  Kennebec  and  Portland  Railroad,"  together  with  the  coupons 
for  interest  thereon,  has  been  shown  to  me,  and  my  opinion  has 
been  requested  upon  the  question,  whether  the  bona  fide  purchaser 
of  one  of  those  coupons  can  maintain  an  action  in  his  own  name 
thereon,  at  the  common  law,  independent  of  any  statute  remedy. 

I  am  of  opinion  that  such  action  may  be  maintained,  and  I  will 


I860.]  OPINIONS   GIVEN  AT   THE  BAB.  285 

state  succinctly  the  reasons  for  that  opinion.  The  certificate  con 
tains  a  promise,  for  value  received,,  to  pay  one  thousand  dollars  to 
its  holder,  in  twenty  years  from  its  date,  and  also  to  pay  the  semi 
annual  coupons  thereunto  attached,  as  the  same  shall  severally 
become  due. 

It  is  not  under  seal.  There  can  be  no  doubt  that  this  scrip  is, 
in  legal  effect,  a  negotiable  promissory  note,  payable  to  its  holder 
or  its  bearer,  which,  in  this  connection,  are  synonymous  terms. 

The  distinction  between  this  scrip  and  an  ordinary  promissory 
note  is,  that,  instead  of  promising  to  pay  the  principal  sum,  and  the 
interest  thereon  to  the  holder  of  the  paper  without  more,  it  promises 
to  pay  the  principal  sum  to  the  holder,  and  makes  a  distinct  promise, 
though  not  expressed  to  be  to  the  holder  of  the  scrip  or  to  the 
holder  of  the  coupons,  to  pay  the  semi-annual  coupons  thereunto 
attached,  which  coupons  are,  severally  and  upon  the  face  of  each, 
promises  to  pay  the  semi-annual  interest. 

What  then  is  the  legal  effect  of  such  a  coupon  as  this,  attached 
to  what  is  undoubtedly  negotiable  paper,  promising  to  pay  the 
semi-annual  interest  upon  the  principal  sum  ? 

If  the  promise  contained  in  each  coupon  had  been  expressly 
made  to  its  holder,  it  would  admit  of  no  doubt  that  each  coupon 
was,  in  legal  effect,  a  negotiable  promissory  note,  payable  on  its 
presentation  by  its  lawful  holder,  though  separated  from  the  bond 
not  only  physically,  but  in  actual  ownership. 

Such  was  the  decision  of  the  Supreme  Court  of  the  United 
States  in  the  two  cases  of  the  Board  of  Commissioners  of  Knox 
County  v.  Aspinwall,  and  Same  v.  Wallace,  reported  in  21  Howard, 
539,  546.  The  statement  of  these  cases  and  of  the  points  argued 
by  counsel,  is  so  imperfect,  that  I  have  obtained  from  one  of  the 
judges  his  printed  copy  of  the  record  and  briefs.  From  these  it 
appears  that  the  form  of  each  coupon  declared  on  was  as  fol 
lows  :  — 

"  Ohio  and  Mississippi  Railroad  Subscription,  County  of  Knox,  Indiana, 
will  pay  the  bearer  sixty  dollars  at  North  Kiver  Bank  in  the  city  of  New 
York,  on  the  first  day  of  March,  1857,  being  annual  interest  on  Bond 
No.  59. 

A.  V.  SMITH,  Auditor." 

The  declaration  was  on  the  promises  contained  in  the  coupons, 
and  did  not  aver  that  the  plaintiff  ever  owned  the  bonds,  and  at  the 
trial  it  was  admitted  he  never  did  own  them. 


286  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [I860. 

Among  the  points  taken  by  the  counsel  for  Knox  County  were 
these  :  that  no  action  lies  on  the  coupons  ;  that  the  declaration  did 
not  state  facts  sufficient  to  authorize  an  action  of  assumpsit ;  and 
that  the  plaintiff,  not  having  produced  the  bonds  at  the  trial,  could 
not  recover. 

The  court  held,  in  both  cases,  that  an  action  of  assumpsit  by  the 
holder  and  owner  of  the  coupons  was  maintainable. 

These  cases  are  not  distinguishable  from  the  one  I  am  consider 
ing,  save  by  the  fact  that  each  of  those  coupons  was  expressed  on 
its  face  to  be  payable  to  its  bearer. 

The  question  is,  whether  each  of  the  coupons  now  before  me, 
when  rightly  interpreted  and  understood,  does  not,  in  legal  effect, 
contain  a  promise  to  pay  to  its  bearer. 

Its  language  is,  The  city  of  Augusta  will  pay.  This  is  an  ex 
press  promise.  And  it  is  not  perceived  how  any  just  effect  can  be 
allowed  to  these  words,  without  holding  that  they  were  intended 
to  create  an  obligation  legally  binding  on  the  promisor. 

The  question  is,  to  whom  it  appears,  by  legal  and  competent 
evidence,  it  was  agreed  this  stipulated  sum  should  be  paid.  I  say 
by  legal  and  competent  evidence ;  for,  certainly,  the  action  being 
founded  on  an  instrument  alleged  to  be  negotiable,  we  must  find 
enough  in  that  instrument,  when  rightly  interpreted,  and  when  its 
just  legal  effect  is  given  to  it,  to  support  its  negotiability. 

But  it  by  no  means  follows  that  we  are  to  look  only  at  what  is 
written  on  each  coupon,  to  ascertain  its  just  legal  effect. 

One  great  rule  for  the  interpretation  of  all  written  contracts  is, 
that  the  judge  who  is  called  upon  to  interpret  them  has  a  right  to 
know,  and  if  possible  should  know,  all  that  the  parties  knew  re 
specting  the  subject-matter  of  their  contract.  And  another  equally 
well-settled  rule  is,  that,  when  a  contract  makes  express  reference 
to  some  other  writing,  the  writing  thus  referred  to  should  be  seen, 
arid  its  bearings  on  the  contract  considered,  in  conformity  with  the 
reference  made  to  it. 

Now  each  of  these  coupons  is  entitled  u  City  of  Augusta  Loan," 
—  and  contains  the  words  and  figures  on  the  margin,  "(Bond  — 
No.  107),"  or  some  other  number  of  reference  to  a  particular  bond. 
And  no  lawyer  will  doubt  that  it  is  admissible  to  show  that,  when 
issued,  they  were  attached  to  another  instrument  thus  referred  to, 
and  that  the  meaning  of  the  parties  to  the  contract  in  the  coupon 
is  to  be  gathered,  not  solely  from  what  is  said  therein,  but  from 


I860.]  OPINIONS    GIVEN   AT   THE   BAR.  287 

that  in  connection  with  the  other  paper  thus  expressly  referred  to, 
and  the  circumstances  which  made  part  of  the  original  transaction. 
Taking  all  these  into  view,  the  question  is,  whether  it  does  not 
sufficiently  appear  to  have  been  the  intention  of  the  promisors  to 
create  obligations  distinct  from  the  scrip,  to  which  they  were 
attached,  and  paj  V)le  to  any  lawful  holder  who  should  present 
them  for  payment. 

The  first  material  circumstance  to  be  noticed,  and  in  my  judg 
ment  it  is  most  material,  is,  that  these  are  obligations  of  a  municipal 
corporation,  whose  power  to  contract  in  this  behalf  is  derived 
solely  from  a  special  act  of  the  Legislature  ;  and  that  this  act  not 
only  authorized,  but  required,  the  city  to  make  separate  contracts 
for  the  principal  and  interest.  The  third  section  of  the  act  re 
quired  the  treasurers  of  the  city  to  make  and  issue  the  scrip  of 
such  city  "for  the  amount  granted  by  such  city,  in  convenient  and 
suitable  sums,  payable  to  the  holder  thereof  on  a  term  of  time,  not 
less  than  twenty  nor  more  than  thirty  years,  with  coupons  for 
interest  attached,  payable  annually  or  semi-annually" 

Here  is  an  explicit  direction  to  make  the  scrip  for  the  principal 
sum  ;  and  as  to  the  payments  of  interest,  they  were  to  be  secured 
by  coupons  attached  to  the  scrip,  payable  annually  or  semi- 
annually. 

It  is  plain,  therefore,  that  it  was  the  intention  of  the  Legislature 
that  the  city  should  so  contract,  that  the  holder  of  scrip  and 
coupons  attached  should  not  be  in  precisely  the  same  condition  as 
the  holder  of  a  promissory  note,  payable  to  bearer,  on  time,  with  in 
terest  annually  or  semi-annually.  In  such  a  case  there  is  but  one 
promise,  —  to  pay  the  principal  and  the  interest ;  and  the  interest  is 
an  incident  inseparable  from  the  principal ;  it  can  be  demanded  only 
by  the  lawful  holder  of  the  note,  by  virtue  of  the  single  promise  con 
tained  in  it.  The  special  and  particular  requirements,  industriously 
introduced  by  the  Legislature,  that  the  scrip  shall  be  for  the  prin 
cipal  sum,  and  that  the  obligation  to  make  each  payment  of  interest 
shall  be  contained  in  a  separate  paper,  originally  attached  to  the 
scrip,  but,  as  its  name  imports,  severable  therefrom,  satisfy  my 
mind  that  it  was  not  intended  that  the  obligations  to  pay  interest 
should  be  inseparable  from  the  obligation  to  pay  the  principal ;  but 
that  they  should  be  distinct  and  separate  promises,  severable  there 
from. 

When  a  corporation  is  empowered  by  the  Legislature  to  do  a 


288  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [I860. 

particular  act  in  a  particular  manner  and  form,  it  is  incumbent  on 
the  corporation  to  observe  that  manner  and  form  (Head  v.  Provi 
dence  Insurance  Co.,  2  Cranch,  127)  ;  and  when  it  has  undertaken  to 
do  the  act,  and  there  is  nothing  to  show  decisively  that  the  corpo 
ration  intended  to  deviate  from  the  authority  granted,  it  is  to  be 
presumed  that  the  corporation  intended  to  act  in  accordance  with 
its  legal  duty,  and  obey  the  requirement  of  the  Legislature.  And 
in  this  case,  unless  there  is  something  which  decisively  proves 
the  contrary,  it  should  be  presumed  that  the  intention  of  the  city 
of  Augusta  was  to  make  a  promise  to  pay  each  instalment  of  in 
terest,  distinct  from  its  promise  to  pay  the  principal,  and  capable 
of  being  severed  therefrom,  and  enforced  by  the  lawful  owner  of 
such  distinct  promise. 

Before  considering  whether  this  contrary  intent  does  appear,  it 
will  be  well  to  have  distinctly  in  view  what  they  who  assert  it 
must  maintain.  They  must  maintain  that  it  was  the  intention  of 
the  city  to  enter  into  no  separate  obligation  to  the  holder  of  a 
coupon ;  that,  lawfully  to  demand  the  interest,  he  must  be  the 
holder  of  the  bond,  and  ought  to  produce  it,  to  show  that  he  is  its 
lawful  bearer ;  and  that  the  city  is  in  the  same  condition  as  it 
would  have  been  in  if  it  had  promised,  in  the  ordinary  way,  to  pay 
to  the  bearer  of  the  bond  the  principal  sum,  with  interest  semi- 
annually. 

But  this  is  inconsistent,  not  only  with  the  separable  character  of 
the  coupons,  but  with  their  express  terms ;  for  each  does  contain  a 
separate  promise  to  pay,  and  that  not  upon  presentation  of  the  bond, 
but  of  the  coupon. 

Now,  if  each  coupon  is  in  legal  effect  payable  to  bearer,  the 
production  of  the  coupon  alone,  and  payment  thereof  in  good  ffdth 
by  the  city,  is  a  legal  discharge ;  though  the  bearer  should,  in  point 
of  fact,  not  be  the  lawful  holder  of  the  coupon.  (Byles  on  Bills, 
173,  174.) 

But  if  only  the  holder  of  the  bond  can  legally  demand  payment 
of  the  coupon,  payment  of  the  coupon  without  the  production  of 
the  bond  would  be  made  at  the  risk  of  the  city.  The  intention  of 
the  city  to  obtain  a  full  and  lawful  discharge  by  each  payment 
cannot  be  doubted.  How  came  the  city  to  agree  to  pay  without 
the  production  of  the  bond,  and  upon  the  presentation  of  the 
coupon  alone,  unless  the  title  to  the  coupon,  evidenced  by  its  pro 
duction,  was  to  be  a  title  to  receive  its  contents  ? 


1860]  OPINIONS   GIVEN   AT   THE   BAR.  289 

And  how  can  possession  of  the  coupon  be  a  title  to  receive  pay 
ment,  or  any  evidence  of  such  a  title,  if  the  real  title  rests  in  the 
holder  of  the  bond  which  is  not  produced  ? 

It  may  be  urged  that  these  coupons  are  not  payable  to  bearer  or 
holder.  They  are  not,  in  terms  ;  but  the  question  is,  if  they  are  not 
so  by  legal  intendment  upon  all  the  facts. 

A  note  payable  to is  a  valid  negotiable  note,  and  authorizes 

any  holder  to  insert  his  own  name.  Crutchley  v.  Clarence,  '2  M. 
&  S.  90;  White  v.  W.  $  Mass.  It.  R.,  21  How.  575. 

The  law  intends  that  a  valid  contract  was  meant  to  be  made 
by  the  express  promise  to  pay,  and  that  justice  requires  that  no 
unfair  and  deceptive  intention  should  be  attributed  to  the  prom 
isor.  It  therefore  attributes  to  him  an  intention  to  pay  any  lawful 
holder. 

In  Gibson  v.  Minet,  1  H.  Bl.  569,  a  majority  of  the  judges  held 
that  a  bill  not  made  payable  to  any  payee,  or  to  the  drawer's  order, 
or  to  bearer,  was  in  legal  effect  payable  to  bearer. 

I  should  not  be  willing  to  say  that,  in  my  opinion,  there  is  any 
universal  rule  of  law  to  this  effect.  In  my  judgment,  whether 
such  a  promise  is  payable  to  any  one  who  becomes  its  holder  in 
good  faith,  or  is  no  promise  at  all,  must  depend  upon  the  surround 
ing  circumstances  under  which  it  \vas  issued  and  received.  Where 

G 

those  circumstances  evince  an  intent  to  have  the  paper  operate  as 
a  binding  negotiable  promise,  I  think  the  law  allows  it  so  to 
operate.  There  is  no  technical  difficulty  in  the  way. 

Take  the  case  of  a  guaranty,  not  addressed  to  any  particular 
person.  As  Chief  Justice  Marshall  has  said,  it  is  a  promise  to  all 
the  world.  Lawrence  v.  Mason,  3  Cranch,  493.  And  a  succes 
sion  of  persons  may  act  on  it,  and  it  enures  to  the  benefit  of  each. 
Union  Bank  v.  Coster's  Ex Vs,  1  Sand.  S.  C.  R.  563  ;  S.  C.  in  error, 
3  Comst.  214;  Lonsdale  v.  La  Fayette  Bank,  18  Ohio,  126. 

So  a  promise  to  accept  bills  enures  to  the  benefit  of  any  one 
who  takes  any  of  them  on  the  faith  of  the  promise  ;  and  though  he 
cannot  treat  it  as  an  acceptance,  he  may  sue  on  the  promise  to 
accept  in  his  own  name.  Boyce  v.  Edwards,  4  Pet.  Ill ;  Russell 
v.  Wiggin,  2  Story,  113. 

The  same  law  has  been  applied  to  an  offer  of  a  reward  for  the 
detection  of  an  offender,  the  recovery  of  property,  the  restoration 
of  a  lost  child,  arid  the  like.  Loring  v.  Boston,  7  Met.  411 ;  Tal- 
lich  v.  Barber,  1  M.  &  S.  108. 

VOL.    I.  19 


290  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [1860. 

In  these  and  many  similar  cases,  where  an  assurance  is  held  out 
to  all  the  world,  it  operates  as  an  original  promise  to  every  one 
who  acts  on  such  assurance,  precisely  as  a  promise  to  pay  to  bearer 
does.  Such  a  promise  is  not  merely  one  promise  to  the  original 
taker  which  he  sells  to  a  subsequent  bearer;  it  is  an  original  and 
independent  promise  to  every  lawful  bearer.  Bulland  v.  Bell, 
1  Mason,  251  ;  Bank  of  Kentucky  v.  Wistar,  2  Pet.  318;  Smith  v. 
Clapp,  15  Pet.  125  ;  Gorgier  v.  Melville,  3  B.  &  C.  45. 

When,  therefore,  it  appears,  as  in  this  instance  I  think  it  does 
appear,  that  the  intention  of  the  promisor  was  to  make  promises 
to  pay  interest  on  a  sum  secured  by  a  negotiable  instrument,  and 
to  make  each  of  these  promises  to  pay  interest  by  a  distinct  writ 
ing  called  a  coupon,  for  the  purpose  of  having  it  severable  from 
the  promise  to  pay  the  principal ;  and  when  his  promise  is  to  pay 
upon  the  presentation,  not  of  the  principal  instrument,  but  of  the 
coupon  alone,  in  my  judgment  such  general  assurance  operates  as  a 
promise  to  pay  to  any  one  who  may  lawfully  present  the  coupon 
for  payment;  and  a  requirement  that  not  only  the  coupon,  but  the 
bond  also,  should  be  presented,  would  materially  change  the  legal 
effect  of  the  promise,  and  would  not  be  sanctioned  by  law.  Scott 
County  v.  Aspinwall^\  How.  539. 

And  the  supposition  that  it  was  the  intention  of  the  city  to  pay 
on  the  presentation  by  the  holder  of  a  coupon  on  the  holding  of 
which  the  title  to  payment  did  not  depend,  and  on  the  production 
of  the  bond  on  the  holding  of  which  the  title  to  payment  did 
depend,  is  so  preposterous  that  I  cannot  entertain  it. 

In  my  opinion,  a  written  promise  to  pay  a  sum  certain,  at  a  time 
certain,  on  presentation  of  the  writing  at  a  place  certain,  is  a  prom 
ise  to  pay  to  the  person  who  shall  then  and  there  present  the 
written  promise  for  payment;  it  cannot  be  distinguished  from,  and 
is  the  same  in  legal  effect  as,  a  promise  to  pay  to  the  holder  or 
bearer  of  the  writing. 

We  are  required  so  to  construe  the  promise  by  the  manifest 
leading  intentions  of  the  parties. 

First,  because,  having  adopted  this  peculiar  and  separate  form 
of  contract  to  pay  interest,  it  is  not  to  be  supposed  they  intended 
that  the  parties  should  be  in  precisely  the  same  condition  as  they 
would  have  been  in  if  it  had  riot  been  adopted. 

Secondly,  because  it  is  most  beneficial  to  the  holder  of  the  scrip/ 
and  riot  in  the  slightest  degree  more  burdensome  or  hazardous  to 


I860.]  OPINIONS   GIVEN   AT   THE   BAB.  291 

the  promisor,  to  have  the  coupons  severable  from  the  scrip,  and 
negotiable,  as  the  scrip  is,  by  delivery. 

Thirdly,  because,  as  the  promise  is  to  pay  on  presentation  of  the 
coupon,  and  the  city  has  no  right  to  require  the  scrip  to  be  pro 
duced,  (see  Scott  County  v.  Aspinwall,  21  How.  539.)  it  is  essen 
tial  to  the  security  of  the  city  that  the  coupons  should  be  held  to 
be  payable  to  bearer. 

Fourthly,  because,  in  legal  effect,  a  general  promise  in  writing 
to  pay  a  sum  certain,  on  the  presentation  of  the  writing  at  a  place 
certain,  is  a  promise  to  pay  to  him  who  shall  present  the  writing; 
that  is,  to  its  holder,  or  bearer. 

There  is  another  view  of  this  matter  to  which  I  attach  impor 
tance. 

I  understand  it  to  be  capable  of  proof  by  abundant  evidence, 
that,  at  the  time  the  act  of  the  Legislature  respecting  these  bonds 
was  passed,  and  at  the  time  they  were  issued,  it  was  a  general 
usage  of  the  commercial  world,  both  in  this  country  and  in  England, 
to  treat  such  coupons  as  negotiable  ;  that  they  were  passed  from 
hand  to  hand,  as  if  payable  to  bearer,  and  were  presented  by  and 
paid  to  the  holder,  without  further  inquiry  as  to  his  title  after  the 
production  of  the  coupon. 

Now  I  agree  at  once,  that  such  a  usage  cannot,  per  se,  make  a 
contract  negotiable  which  by  law  is  not  negotiable,  and  that  the 
evidence  of  such  a  usage  is  not  admissible  for  any  such  purpose. 
But  it  seems  to  me  equally  plain,  that  when  the  law  has  made  nego 
tiable  a  written  promise  to  pay  a  sum  certain  on  a  day  certain  to 
the  holder  or  bearer  of  the  promise,  and  the  question  arises  whether 
a  writing  contains  a  promise  to  pay  to  its  holder  or  bearer,  and  the 
terms  of  the  writing  will  not  be  contradicted  by  so  interpreting  it, 
it  is  admissible  to  show  a  general  usage  of  commerce  so  to  inter 
pret  and  act  upon  all  similar  writings.  In  other  words,  that  the 
parties  will  be  held  to  have  contracted  in  reference  to  such  a 
usage,  and  with  the  understanding  that  the  contract  in  question  will 
be  interpreted  and  acted  on  in  accordance  with  the  usage.  And  if 
the  usage  was  to  treat  such  contracts  as  intended  to  be  payable  to 
bearer,  and  their  terms  are  not  contradicted  by  so  treating  them,  the 
legitimate  conclusion  is,  that  they  were  designed  to  be,  and  in  legal 
effect  are,  payable  to  bearer. 

Numerous  cases  might  be  cited  in  support  of  this  position,  but 
it  is  enough  to  refer  to  Williams  v.  Oilman,  3  Me.  R.  276 ; 


292  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [I860. 

Em  mom  v.  Lord,  18  Me.  R.  351  ;  and  Renner  v.  The  Bank  of 
Columbia,  9  Wheat.  581,  where  Mr.  Justice  Thompson  has  care 
fully  examined  the  subject. 

I  have  carefully  examined  two  decisions  of  the  Supreme  Court 
of  Maine,  made  in  Myers  v.  T.  fy  O.  R.  R.,  43  Me.  R.  232,  and 
Jackson  v.  Same,  in  manuscript.  Each  is  clearly  distinguishable 
from  the  case  under  consideration. 

In  each  of  these  cases  the  bonds  maintained  express  promises 
under  seal  to  pay  the  interest,  and  in  the  first  case  there  was  suffi 
cient  reason  to  hold,  and  this  seems  the  only  point  decided  in  that 
case,  that  the  papers  declared  on  were  improvidently  issued,  with 
out  consideration.  In  the  last  case  it  was  held  that,  as  there 
was  a  covenant  in  the  bond  to  pay  the  interest,  assumpsit  did  not 
lie  on  the  coupon,  and  that  there  was  not  enough  upon  the  face  of 
the  coupon  to  show  that  it  was  the  design  of  the  corporation  to 
make  a  negotiable  contract. 

As  it  seems  to  me  that,  in  the  case  now  under  consideration, 
there  is  enough  to  show  a  design  to  enter  into  separate  negotiable 
contracts,  to  pay  the  interest,  and  as  the  bonds  or  scrip  are  not 
under  seal,  I  conceive  that  the  decisions  of  the  Supreme  Court  do 
not  apply  to  this  case.  It  is  observable,  also,  that  this  scrip  con 
tains  no  promise  to  pay  the  interest,  and  that  the  promise  to  pay 
the  coupons  does  not  purport  to  be  made  to  the  holder  of  the  scrip, 
but  is  general,  and  not  limited  to  any  party. 

In  reference  to  cases  like  this,  I  am  forcibly  impressed  with  the 
truth  and  importance  of  the  language  of  Lord  Cottenham,  when, 
speaking  of  a  question  of  parties,  he  said  he  thought  it  the  duty  of 
the  court  to  adapt  its  practice  and  course  of  proceeding,  as  far  as 
possible,  to  the  existing  state  of  society,  and  to  apply  its  jurisdic 
tion  to  all  those  new  cases  which,  from  the  progress  daily  making 
in  the  affairs  of  men,  must  continually  arise,  and  not,  from  too 
strict  an  adherence  to  forms  and  rules  established  under  very 
different  circumstances,  decline  to  administer  justice  and  to  enforce 
rights  for  which  there  is  no  other  remedy.  Taylor  v.  Salmon, 
4  M.  &  Cr.  141.  The  progress  made  by  the  courts  of  common 
law,  particularly  in  this  country,  in  adapting  its  rules  to  the  actual 
affairs  of  men,  affords,  in  my  opinion,  the  strongest  argument  in 
favor  of  our  unwritten  system  of  law ;  and  this  progress  has  been 
made,  not  under  a  claim  of  right  to  alter  the  law,  but  by  treating 
ancient  rules,  established  under  very  different  circumstances,  with 


186a  OPINIONS    GIVEN    AT   THE   BAR.  293 

the  strictness  which  is  appropriate  to  them,  and  by  admitting  excep 
tions  vvhich  changes  in  the  affairs  of  men  have  both  assumed  to  exist 
and  have  rendered  necessary.  On  this  subject,  instructive  lessons 
may  be  learned  from  Beverly  v.  Lincoln,  6  Ad.  &  El.  829  ;  Bank 
of  Columbia  v.  Patterson,  7  Cranch,  299  ;  and  upon  this  very  mat 
ter  of  the  negotiability  of  instruments,  from  White  v.  Vt.  fy  Mass. 
R.  (7.,  21  How.  ^75.  Vast  amounts  of  money  have  been  lent  in 
good  failh  upon  securities  like  those  now  in  question.  A  decision, 
or  a  course  of  decision,  which  should  subject  such  contracts  to 
narrow  and  technical  views  wholly  in  conflict  with  the  understand 
ing  and  practice  of  all  concerned  in  them,  would,  in  my  opinion,  be 
inconsistent  with  the  just  rights  and  obligations  of  the  parties,  and 
with  a  proper  application  of  the  law.  My  conviction  is  perfect, 
that  in  the  courts  of  the  great  commercial  States,  and  in  the  Su 
preme  Court  of  the  United  States,  they  will  not  be  so  treated ;  and 
I  should  be  greatly  disappointed  and  surprised  if  they  should  be  so 
treated  in  the  Supreme  Court  of  the  great  commercial  State  of 
Maine.  Certainly  the  Legislature  of  that  State,  which  is  the  ex 
positor  of  its  public  policy,  has  shown  any  thing  but  such  a  disposi 
tion.  By  the  act  of  April  4,  1857,  apparently  assuming  that  such 
coupons  are  transferable,  and  so  may  previously  have  been  trans-* 
ferred  apart  from  the  bonds  to  which  they  were  attached,  it  is 
enacted,  that  assumpsit  may  be  maintained  thereon  by  the  holder 
for  value  ;  thus  giving  a  remedy  which,  aside  from  the  act,  could  not 
be  had  at  the  common  law,  where  there  was  a  promise  under  seal. 

This  is  an  important  question,  and  I  have  given  it  the  fullest 
consideration.  The  best  opinion  I  can  form  is,  that  the  bearer  of 
each  coupon  has  the  right  to  present  it  and  demand- its  contents; 
that  the  city  has  promised  on  each  coupon  that  its  contents  shall 
be  paid  to  him  who  lawfully  presents  it  for  payment ;  that  this  is, 
in  legal  effect,  a  promise  which  enures  to  each  bearer  of  a  cou 
pon  ;  and  that,  if  not  paid,  he  has  a  right  of  action  to  recover  its 
amount. 

May  11,  1860. 

CONSTITUTIONAL   LAW.  — FOREIGN   INSURANCE    COMPANIES. 

CASE. 

The  laws  of  New  York,  Massachusetts,  and  several  other  States 
require  from  the  agencies  of  insurance  companies  incorporated  by 


294  MEMOIR   OF    BENJAMIN   BOBBINS   CURTIS.  [186a 

or  organized  in  foreign  countries,  a  deposit  of  securities,  varying  in 
amount  from  $20,000  to  $200,000,  to  be  placed  with  their  comp 
trollers  or  other  State  officers,  as  a  condition  precedent  for  engaging 
in  the  business  of  insurance. 

They  also  impose  discriminating  taxes  upon  the  premiums  or 
business  of  such  agencies,  varying  in  amount,  but  in  excess  of  the 
taxes  imposed  upon  domestic  companies  or  associations  engaged  in 
the  same  business. 

The  question  for  consideration  is,  whether,  such  enactments  can 
be  constitutionally  made  with  respect  to  the  association  or  partner 
ship  known  as  "  The  Liverpool  and  London  and  Globe  Company," 
whose  legal  status  is  defined  in  the  accompanying  paper,  prepared 
for  and  submitted  to  the  trustees  of  that  association. 

OPINION. 

The  Constitution  of  the  United  States  (Art.  4,  sect.  2)  secures 
to  the  citizens  of  each  State  "  all  privileges  and  immunities  of 
citizens  in  the  several  States."  There  can  be  no  doubt  that  among 
these  privileges  and  immunities  is  included  an  exemption  from 
impositions  either  of  taxes  or  other  burdens  greater  than  are  im 
posed  by  State  laws  on  their  own  citizens,  under  the  same  circum 
stances.  (See  Corfield  v.  Coryell,  4  Wash.  C.  C.  R.  371  ;  Story 
on  the  Constitution,  sect.  1805,  1806;  2  Kent's  Com.  71  marg. 
page  ;  Scott  v.  Sundford,  19  How.  583,  584.) 

This  article,  however,  has  no  reference  to  corporations ;  and  any 
State  may  exclude  foreign  corporations  from  transacting  business 
within  its  territory,  and  consequently  may  prescribe  the  conditions 
upon  which  they  may  be  permitted  to  do  so. 

But  the  association  now  in  question  is  not  a  corporation.  No 
political  person  has  been  created  by  the  law  of  England.  The 
cdmpany  consists  of  natural  persons,  associated  together  by  con 
tract  for  the  purpose  of  conducting  the  business  of  insurance  for 
their  joint  profit,  and  cannot  be  distinguished  from  other  commer 
cial  partnerships.  The  facts,  that  the  business  of  the  association  is 
managed  by  trustees,  who  are  the  active  partners,  and  that  one  of 
the  countries  where  their  business  is  conducted  has  a  municipal  law 
dispensing  with  the  necessity  of  joining  all  the  partners  in  suits  by 
and  against  the  association,  cannot  change  its  legal  character.  It  is 
still  a  partnership,  and,  as  in  other  partnerships,  each  person  who 


1865.]  OPINIONS    GIVEN   AT   THE   BAR.  295 

participates  in  the  profits  is  liable  to  third  persons,  and  the  members 
are  liable  inter  sese,  according  to  the  stipulations  of  their  articles 
of  association. 

The  true  inquiry,  therefore,  is  whether  the  State  of  Massa 
chusetts  (for  instance)  can  impose  on  a  partnership,  consisting 
partly  of  citizens  of  New  York  and  partly  of  British  subjects,  any 
tax  or  burden  greater  than  is  imposed  on  its  own  citizens,  trans 
acting  the  same  business  within  the  State. 

If  the  partnership  consisted  wholly  of  citizens  of  some  other 
State  than  Massachusetts,  the  right  of  exemption  from  such 
greater  tax  or  burden,  under  the  fourth  article  of  the  Constitution, 
would  be  clear  and  indisputable ;  and,  in  my  judgment,  the  fact 
that  aliens  are  associated  with  citizens  does  not  constitute  a  ma 
terial  difference ;  not  only  because,  from  the  necessity  of  the  case, 
it  is  impracticable  to  impose  the  greater  burden  on  the  alien 
without  imposing  it  on  the  citizen,  which  is  forbidden  ;  but  be 
cause  the  privilege  of  associating  themselves  with  alien  friends 
as  partners,  and  of  reaping  all  the  benefits  of  such  association, 
is  one  which  is  enjoyed  by  citizens  of  Massachusetts  without 
restriction,  and  consequently  no  burden  or  restriction  can  be 
imposed  upon  citizens  of  New  York,  who  desire  to  form  such 
associations  and  transact  business  within  the  State  of  Massachu 
setts. 

Though  my  opinion  has  not  been  specially  requested  upon  the 
true  construction  of  the  law  of  Massachusetts,  on  the  subject  of 
taxing  foreign  insurance  companies,  yet  I  think  I  ought  to  say  that 
it  seems  to  m,e  doubtful  whether  those  laws  are  applicable  to  any 
but  incorporated  companies.  But  if  ch.  58,  sect.  78,  of  the  General 
Statutes  of  Massachusetts  should  be  construed  to  include  unin 
corporated  companies,  then  there  is  not  in  fact  any  discrimination 
between  unincorporated  companies  consisting  of  citizens  of  Massa 
chusetts,  and  those  consisting  of  citizens  of  other  States.  Whether, 
under  the  Constitution  of  the  State,  the  Legislature  can  impose  a 
tax  on  its  own  citizens  and  others  who  carry  on  the  business  of 
insurance  as  individuals,  is  extremely  doubtful,  to  say  the  least.  It 
is  deemed  here  to  be  "•  a  fundamental  maxim  of  our  social  system, 
that  all  burdens  and  taxes  laid  on  the  people  for  the  public  good 
shall  be  equal"  (per  Shaw,  C.  J.,  16  Pick.  509,)  and  I  do  not  think 
it  can  be  successfully  maintained  that  a  special  tax  on  one  kind  of 
business  only  is  equal.  Speaking  of  the  State  of  Massachusetts, 


296  MEMOIR    OF    BENJAMIN   ROBBINS    CUKTIS.  [1865. 

I  should  expect  it  to  be  held,  either  that  the  differential  tax 
applies  only  to  corporations,  or  that  it  is  not  warranted  by  the 
Constitution. 

Of  course  I  do  not  express  my  opinion  upon  the  meaning  of  the 
laws  of  any  other  State,  for  I  have  not  examined  them  ;  but  my 
opinion  is,  that  a  law  of  any  State  which  requires  this  company  to 
pay  a  greater  tax,  or  to  bear  a  greater  burden  of  any  kind,  than 
the  laws  of  such  State  impose  on  its  own  citizens,  who  may  choose 
to  engage  as  natural  persons  in  the  business  of  insurance,  is  in  con 
flict  with  the  Constitution  of  the  United  States,  and  therefore  is 
inoperative. 

The  question  whether  the  treaties  between  the  United  States 
and  Great  Britain  prevent  the  States  from  imposing  on  the  busi 
ness  of  this  association  a  tax  or  burden  not  imposed  on  the  citi 
zens  of  such  States  who  conduct  the  like  business,  is  attended, 
I  think,  with  some  difficulty ;  but  I  am  inclined  to  the  opinion  that 
such  tax  or  burden  cannot  be  imposed. 

If  the  association  consisted  exclusively  of  British  subjects,  it 
seems  to  me  no  State  could  prohibit  them  from  carrying  on  "  trade 
or  commerce"  within  its  limits;  and  if  so,  no  State  can,  in  my 
judgment,  impose  differential  taxes  upon  them  by  reason  of  their 
trade  or  commerce.  The  power  to  tax  them  qua  foreigners  is  a 
power  to  exclude  them;  and  I  do  not  perceive  that  the  objection 
is  diminished  by  the  fact  that  the  tax  falls  on  some  citizens,  be 
cause  they  are  their  associates  in  business.  It  is  not  the  less  a 
discrimination  against  them,  because  the  discrimination  is  also 
against  some  citizens  merely  because  associated  with  them.  Such 
discrimination  tends  directly,  not  only  to  exclude  the  foreigner 
from  the  business,  but  to  deprive  him  of  the  free  liberty  of  con 
ducting  it  in  partnership  with  our  citizens ;  and  if  this  business  can 
be  deemed  "  trade "  or  "  commerce "  within  the  meaning  of  the 
treaty  of  1794,  then,  in  my  opinion,  the  States  are  precluded  by 
the  treaty  from  levying  a  differential  tax  thereon. 

My  doubt  is  whether  those  words  are  broad  enough  to  include 
the  business  of  fire  and  marine  insurance.  I  am,  however,  strongly 
inclined  to  the  opinion  that  they  are.  They  should  receive  a  lib 
eral  interpretation  in  accordance  with  the  liberal  and  humane  spirit 
of  the  treaty,  and  so  as  to  produce  that  mutual  satisfaction  and  good 
understanding,  and  those  reciprocal  and  equal  benefits,  which  formed 
its  inducements  and  objects. 


1865.]  OPINIONS   GIVEN   AT   THE   BAR.  297 

It  has  been  long  settled  that  the  general  meaning  of  the  word 
commerce  in  our  Constitution  is  intercourse ;  and  I  perceive  no 
sound  reason  why  the  same  word  in  this  treaty  should  not  include 
that  intercourse,  the  purpose  of  which  is  the  formation  of  a  class  of 
contracts  known  to  the  general  commercial  law  of  the  world,  and 
which  are  of  such  vast  importance  to  the  trade  and  commerce  of 
all  nations. 

These  contracts  are  among  the  most  important  instruments 
through  which  commerce  and  trade  are  rendered  practicable  and 
safe ;  and  it  seems  to  me,  one  w.hose  business  it  is  to  make  them 
may  be  said  to  be  engaged  in  commerce,  as  this  word  was  intended 
to  be  used  in  the  treaty  of  1794  with  Great  Britain. 

B.  R.  CURTIS. 

January  5,  1865. 


CONSTITUTIONAL  LAW.— FREEDOM  OF  TEADE. 

CASE. 

It  has  been  the  practice  of  wholesale  merchants,  both  in  this  and 
other  countries,  to  employ  persons  to  travel  over  the  country  and 
solicit  orders  for  merchandise.  This  practice  has  been  extensive 
and  long  continued.  It  has  long  been,  and  is,  a  recognized  and  im 
portant  means  of  carrying  on  wholesale  business.  It  has  nothing 
whatever  to  do  with  retail  trade,  and  is  wholly  distinct  from  the 
trade  of  "  hawkers  and  pedlers,"  who  travel  from  place  to  place  to 
sell  their  wares  at  retail  to  consumers.  The  persons  thus  employed 
are  the  representatives  and  agents  of  established  wholesale  mer 
chants  and  manufacturers,  whose  places  of  business  are  fixed  and 
permanent,  and  in  whose  behalf  orders  are  obtained,  and  on  whose 
responsibility  they  are  executed. 

A  law  has  been  enacted  by  the  State  of  Maine,  in  the  following 
terms  :  — 

Sect.  1.  No  person,  except  as  hereinafter  provided,  shall  travel 
from  town  to  town,  or  place  to  place,  in  any  town  in  this  State,  on 
foot  or  by  any  kind  of  land  or  water,  public  or  private  conveyance 
whatever,  carrying  for  sale  or  offering  for  sale  any  goods,  wares, 
or  merchandise  whatever,  whole  or  by  samples,  under  a  penalty  of 
not  less  than  fifty  nor  more  than  two  hundred  dollars,  and  the  for 
feiture  of  all  property  thus  unlawfully  carried. 


298  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1865. 

Sect.  2.  The  county  commissioners  in  their  counties  may  license, 
for  the  purposes  aforesaid,  any  person  applying  who  proves  to  their 
satisfaction  that  he  sustains  a  good  moral  character,  has  been  five 
years  a  citizen  of  the  United  States,  and  has  resided  the  year  pre 
ceding  in  some  town  in  the  county  where  the  application  is  made  ; 
and  such  licenses  shall  expire  in  one  year  from  their  date ;  shall  not 
be  transferred  or  assigned  without  the  consent  of  the  board  grant 
ing  the  same ;  and  the  applicants  shall  pay  therefor  to  the  county 
they  are  to  travel  in  :  —  if  on  foot,  or  in  any  boat  or  other  water  craft, 
ten  dollars  ;  with  a  carriage  drawn  by  one  animal,  fifteen  dollars  ; 
and  drawn  by  two  animals,  twenty  dollars  ;  and  shall  present  to 
the  commissioners,  with  their  application,  a  certificate  of  good  moral 
character  from  the  municipal  officers  of  the  town  where  they  reside, 
which  shall  be  attached  to  their  license. 

Sect.  3.  No  person  licensed  as  aforesaid  shall  sell,  carry,  or  offer 
for  sale  any  property  belonging  to  persons  not  five  years  residents 
of  this  State,  or  any  jewelry,  playing  cards,  or  other  property 
prohibited  by  law,  under  the  penalty  provided  in  Sect.  1.  But 
nothing  in  this  chapter  shall  prevent  any  citizen  of  this  State  from 
selling  any  fish,  fruit,  provisions,  farming  utensils,  or  other  articles 
lawfully  raised  or  manufactured  in  this  State. 

Sect.  4.  Every  person  shall  exhibit  his  license  at  all  times  when 
required  by  any  justice  of  the  peace,  or  any  constable  or  other 
peace  officer ;  and  a  refusal  to  do  so  shall  be  deemed  evidence  of 
not  having  any  ;  and  if  afterwards  prosecuted,  the  production  of 
his  license  at  the  trial  shall  not  avail  him  in  defence,  but  he  shall 
be  dealt  with  as  unlicensed ;  and  the  carriages,  goods,  wares,  and 
merchandise  of  any  person  thus  refusing  may  be  seized  by  a  war 
rant  from  any  justice  of  the  peace,  and  detained  until  the  payment 
of  any  fine  to  which  said  person  is  liable. 

Sect.  5.  All  penalties  and  forfeitures  herein  provided  may  be 
recovered  by  indictment,  or  action  of  debt,  one  half  to  the  use  of 
the  town  where  the  offence  is  committed,  and  the  other  to  the  use 
of  the  person  prosecuting  therefor  ;  and  any  justice  of  the  peace 
may  cause  the  arrest  of  the  accused,  on  complaint,  and  seizure  of 
the  property  alleged  to  be  forfeited,  and  detain  the  same  until  trial 
in  the  proper  court ;  and  in  case  of  conviction,  the  property  shall 
be  decreed  forfeited  to  the  uses  aforesaid ;  to  be  sold  in  like  manner 
as  goods  taken  on  execution. 

Sect.  6.  Every  person  licensed  shall  have  painted  on  every  car- 


1865.]  OPINIONS   GIVEN  AT   THE  BAR.  299 

riage  employed  by  him,  in  letters  at  least  one  inch  wide,  his  name, 
and  the  words,  "  Licensed  by  C.  C." 

Your  opinion  is  requested,  whether  this  is  a  constitutional  and 
valid  law,  so  far  as  it  operates  upon  persons  not  citizens  of  Maine, 
and  upon  their  property. 

OPINION. 

So  far  as  it  respects  the  commerce  or  the  persons  of  citizens  of 
other  States,  the  substance  of  this  law  is:  —  1.  That  citizens  of 
other  States  are  absolutely  prohibited  from  going  from  place  to 
place  within  the  State  of  Maine,  and  offering  for  sale,  in  whole  or 
by  samples,  any  goods,  wares,  or  merchandise  whatever.  2.  That 
citizens  of  the  State  of  Maine  are  prohibited  from  going  from 
place  to  place  within  that  State,  and  offering  for  sale,  in  whole  or 
by  samples,  any  goods,  wares,  or  merchandise  belonging  to  citizens 
of  other  States.  3.  That  citizens  of  the  State  of  Maine  may  sell 
without  restriction  any  articles  lawfully  raised  or  manufactured  in 
that  State. 

The  Constitution  of  the  United  States  empowered  Congress  "  to 
regulate  commerce  with  foreign  countries  and  among  the  several 
States." 

It  is  clear  that  a  merchant  who  is  a  citizen  of  any  State  other 
than  Maine,  and  who  has  his  domicile  and  his  established  house  of 
trade  in  the  State  of  which  he  is  a  citizen,  and  who  sends  his  agent 
into  the  State  of  Maine  to  obtain  orders  for  merchandise,  which  he 
executes  by  sending  the  merchandise  to  the  purchaser  in  Maine,  is 
thus  engaged  in  commerce  between  his  own  State  and  the  State  of 
Maine,  within  the  meaning  of  the  Constitution.  It  is  equally  clear 
that  the  agent  who  goes  into  the  State  of  Maine  to  obtain  such 
orders,  is  also  engaged  in  such  commerce.  For  it  has  been  settled 
by  the  Supreme  Court  of  the  United  States,  that  one  signification  of 
this  word  "  commerce  "  in  the  Constitution  is  intercourse  ;  and  that 
the  power  to  regulate  it  granted  to  the  Congress  extends  to  the 
regulation  of  the  persons  by  means  of  whom  intercourse  for  the 
purposes  of  traffic  is  carried  on.  Gibbons  v.  Oydeti,  9  Wheat.  1  ; 
Cooley  v.  Board  of  Wardens,  12  How.  299.  Nor  can  there  be  any 
doubt  that  a  law  of  Maine  which  prohibits  merchants  in  other 
States  from  using  any  accustomed  and  regular  means  to  carry  on 
traffic,  or  intercourse  for  the  purposes  of  traffic,  between  their  own 
States  arid  the  State  of  Maine,  is  not  only  a  law  regulating  com- 


300  MEMOIR   OF  BENJAMIN   BOBBINS   CUKTIS.  [1865. 

merce  among  the  several  States,  but  is  a  law  which,  so  far  as  it 
operates  at  all,  operates  to  prohibit  such  commerce ;  and  the  first 
question  which  arises  is.  whether  the  State  of  Maine  has  power  to 
prohibit  the  use  of  one  of  the  long  established,  regular,  and  impor 
tant  means  of  carrying  on  commerce  between  other  States  and 
that  State.  Upon  this  question  I  do  not  entertain  any  doubt. 
There  has  been  some  diversity  of  opinion  in  former  times,  among 
the  judges  of  the  Supreme  Court,  upon  the  question  whether  Con 
gress  has  the  exclusive  power  to  regulate  commerce  among  the 
several  States  and  with  foreign  nations,  or  whether  the  several 
States  may  legislate  in  some  cases,  upon  this  subject,  in  the  absence 
of  Congressional  legislation.  But  I  am  not  aware  that  the  exer 
cise,  by  a  State,  of  the  power  absolutely  to  prohibit  the  use  of  one 
long  established,  regular,  and  important  means  of  carrying  on  such 
commerce,  has  even  been  supposed  to  be  constitutional  since  the 
decision  of  Gibbons  v.  Ogden,  in  1824. 

It  must  be  borne  in  mind,  that  this  is  a  question  of  the  existence 
of  power,  and  not  of  the  expediency  of  the  particular  use  made  of 
it.  It  must  be  remembered,  that  it  is  not  the  purpose  of  this  law 
to  regulate  the  conduct  of  foreign  merchants  or  their  agents,  when 
they  come  within  the  State  of  Maine  for  the  purpose  of  using  a 
regular  and  accustomed  means  of  lawful  traffic  between  the  States. 
As  respects  foreign  merchants  and  their  agents,  who  come  within 
the  State  for  the  purpose  of  using  this  means  of  traffic,  it  is  not  a 
law  of  regulation,  but  of  prohibition.  They  are  not  permitted  to 
use  this  well-known,  usual,  and  important  means  of  traffic  by  com 
plying  with  certain  conditions  and  observing  certain  regulations. 
They  are  absolutely  prohibited  from  using  this  means.  Now  if  the 
power  exist  to  prohibit  one  customary  and  important  means  of  car- 
rving  on  commerce  between  the  States,  where  are  the  limits  of 
such  power  ?  Why  may  it  not  be  employed  so  as  to  greatly 
embarrass  and  even  to  annihilate  it?  If  a  State  may  prohibit  mer 
chants  of  other  States  from  sending  their  agents  into  the  State  to 
go  from  place  to  place  and  obtain  orders  for  goods  by  exhibiting 
samples,  what  is  to  prevent  the  prohibition  to  send  an  agent  at  all 
to  obtain  orders  for  goods?  Or  what  the  prohibition  to  come  for 
that  purpose  himself?  Or  the  prohibition  to  solicit  orders  through 
the  mail,  or  even  through  advertisements  in  newspapers  within  the 
State  ?  I  can  perceive  nothing  in  the  nature  of  the  power,  or  the 
subject  upon  which  it  is  exercised,  or  the  nature  of  the  particular 


1805.]  OPINIONS    GIVEN    AT   THE   BAR.  301 

prohibition  in  question,  which  can  distinguish  it  from  either  of  the 
other  prohibitions  mentioned,  or  from  many  others  which  might  be 
mentioned.  Their  exclusively  internal  commerce  the  several  States 
may  regulate.  They  may  pass  laws  to  regulate  travelling  only 
from  town  to  town  within  the  State.  But  they  cannot  prohibit 
merchants  in  other  States  from  carrying  on  commerce  within  their 
several  limits,  or  from  using  any  of  the  known  and  established 
means  and  instruments  for  that  purpose. 

But  in  my  opinion  this  is  not  the  only  valid  objection  to  this 
law.  The  Constitution  provides  that  "  the  citizens  of  each  State 
shall  be  entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States."  The  law  of  Maine,  now  in  question,  prohibits 
citizens  of  other  States  from  using  this  known,  regular,  and  accus 
tomed  means  of  selling  their  own  property  within  the  State  of 
Maine,  by  employing  even  duly  licensed  agents  within  the  State 
for  that  purpose.  It  confines  the  privilege  of  using  this  means  of 
traffic  to  citizens  of  the  State  of  Maine.  A  citizen  of  Maine  may 
employ  a  duly  licensed  person  to  travel  from  place  to  place,  and 
solicit  orders  to  buy  his  merchandise  by  sample.  A  citizen  of 
Massachusetts  is  prohibited  from  exercising  this  privilege.  If  it 
be  among  "  the  privileges  "  intended  to  be  secured  by  the  Constitu 
tion,  the  law  in  question  is  inoperative  and  void  as  against  citizens 
of  States  other  than  Maine.  And  I  have  no  doubt  that  the  privi 
lege  of  employing  a  duly  licensed  agent  to  solicit  orders  for  goods 
by  sample  is  among  the  privileges  secured  by  this  clause  of  the 
Constitution. 

In  one  of  the  Articles  of  Confederation  (Art.  4),  there  was  this 
clause:  "The  people  of  each  State  shall,  in  every  other,  enjoy  all 
the  privileges  of  trade  and  commerce,  subject  to  the  same  duties, 
impositions,  and  restrictions  as  the  inhabitants  thereof  respectively," 
&c.  As  well  because  of  the  mention  of  "  duties,  impositions,  and 
restrictions,"  which  under  the  Constitution  were  no  longer  to  be 
left  in  the  power  of  the  States,  as  because  of  ambiguities  in  the 
article  which  are  pointed  out  by  the  Federalist  (No.  42),  the  lan 
guage  of  this  article  was  not  inserted  in  that  corresponding  pro 
vision  of  the  Constitution  designed  to  create  a  general  citizenship. 
The  general  words  "  privileges  and  immunities  of  citizens  "  were 
substituted  in  place  of  the  particular  enumeration  of  privileges  in 
this  4th  Article  of  the  Confederation.  But  considering  that  it  was 
among  the  declared  objects  of  the  Constitution  "  to  form  a  more 


302  MEMOIR    OF   BENJAMIN   BOBBINS    CUKTIS.  [1865. 

perfect  union,"  and  that  the  power  to  regulate  commerce  among 
the  several  States  was  conferred  on  Congress,  there  can  be  no 
doubt  that  among  the  privileges  and  immunities  of  citizens  secured 
by  the  Constitution  is  the  privilege  of  using  all  such  instruments 
and  means  of  traffic  as  are  allowed  by  the  laws  of  the  State  to  be 
used  therein  by  its  own  citizens.  It  may  be  admitted  that,  in  the 
exercise  of  their  police  power,  the  States  may  pass  laws  which  in 
directly  affect  commerce  among  the  several  States.  For  instance, 
they  may  regulate  sales  at  public  auction,  and  may  prohibit  any  one 
but  a  duly  licensed  auctioneer  from  making  such  sales.  But  they 
cannot  prohibit  citizens  of  other  States  from  selling  their  property 
at  public  auction,  through  a  duly  licensed  auctioneer,  so  long  as 
they  permit  their  own  citizens  to  do  so. 

The  right  to  take,  hold,  and  dispose  of  property,  in  the  same 
manner,  and  under  no  greater  restrictions  or  burdens  than  are 
imposed  on  their  own  citizens,  is  among  the  clearest  and  most  im 
portant  of  those  privileges  and  immunities  conferred  by  the  Con 
stitution.  And  inasmuch  as  this  law  prohibits  citizens  of  other 
States  from  using  an  established,  long-accustomed,  and  important 
means  of  selling  property,  which  it  allows  to  citizens  of  Maine,  I 
have  no  doubt  this  prohibition  is  inoperative  and  void. 

I  think  also  it  would  be  found  to  be  impossible  to  maintain  the 
validity  of  that  discrimination  which  this  law  attempts  to  make 
between  articles  the  growth  or  manufacture  of  Maine,  and  those 
which  are  the  growth  or  manufacture  of  other  countries  or  States. 
In  the  former  a  citizen  of  Maine  may  deal  without  restriction  ; 
but  not  in  the  latter.  This  law  therefore  imposes  on  the  traffic 
in  all  merchandise  grown  or  manufactured  by  a  citizen  of  Massa 
chusetts,  within  his  own  State,  burdens  and  restrictions  not  imposed 
on  like  articles  grown  or  manufactured  in  Maine  by  its  citizens. 
If  a  citizen  of  Maine  own  articles  grown  or  manufactured  in  Maine, 
he  may  sell  them  unrestricted  by  this  law.  But  if  he  own  mer 
chandise  grown  or  manufactured  out  of  Maine,  he  cannot.  I 
greatly  doubt  the  power  of  a  State  to  make  any  regulation  of 
traffic  which  thus  discriminates  between  articles  of  its  own  growth 
or  manufacture,  and  articles  grown  or  manufactured  in  other  States 
and  in  foreign  countries.  This  discrimination  is  not  the  exercise 
of  a  police  power.  It  is  not  an  inspection  or  health  law.  It  is 
not  designed,  like  laws  regulating  hawkers  and  pedlers,  and  auc 
tioneers,  to  secure  the  inhabitants  of  the  State  from  imposition,  or 


1865.]  OPINIONS    GIVEN   AT   THE   BAB.  303 

to  regulate  the  internal  commerce  of  the  State.  It  is  a  regulation 
of  commerce,  the  only  purpose  and  effect  of  which  is  to  give  to 
producers  in  Maine,  and  all  who  traffic  in  their  products,  a  privi 
lege  and  immunity  not  allowed  to  producers  elsewhere,  and  to 
those  who  traffic  in  their  products  ;  and,  to  the  extent  it  operates, 
to  encourage  and  protect  the  former,  and  to  burden  and  restrain 
the  latter. 

I  think  such  a  regulation  is  not  within  the  power  of  a  State. 
While  my  opinion  is  that  the  power  to  regulate  commerce  among 
the  several  States  and  with  foreign  nations  is  not  in  all  cases  an 
exclusive  power,  and  the  States  may  make  some  commercial  regu 
lations  which,  in  the  absence  of  Congressional  legislation,  will  be 
valid,  yet  when  the  subject  in  question  is  one  which  from  its  nature 
demands  uniform  regulation  for  the  general  benefit  of  the  nation, 
there  is  no  room  for  doubt,  and  so  far  as  I  know  it  has  not  been 
doubted  for  many  years,  that  the  power  of  Congress  is  exclusive 
and  the  States  cannot  legislate  thereon.  And  such  is  the  settled 
doctrine  of  the  Supreme  Court.  (  Cooley  v.  Board  of  Portwardens, 
12  How.  318-320.)  Now  if  each  State  may  discriminate  in  favor 
of  its  own  products  and  manufactures,  according  to  its  own  views 
of  its  own  interest,  it  is  iri  the  power  of  the  States  to  create  a 
condition  of  things  quite  as  bad,  as  respects  commerce  among  the 
States,  as  that  which  existed  when  the  Constitution  was  formed. 

The  general  good  of  the  nation  demands  uniform  rules,  oper 
ating  equally  on  the  entire  internal  commerce  of  the  nation,  with 
out  regard  to  State  lines,  and  unembarrassed  by  partial,  conflicting, 
and  vexatious  State  regulations.  In  other  words,  it  demands  entire 
freedom,  except  so  far  as  Congress,  for  the  general  good,  may 
find  it  needful  to  impose  restrictions. 

In  my  opinion,  therefore,  this  State  regulation  of  commerce, 
which  attempts  thus  to  discriminate  between  products  of  Maine 
and  those  of  other  States  and  countries,  is  in  conflict  with  the  Con 
stitution  of  the  United  States.  And  if  this  be  so,  there  is  no  part 
of  this  law,  and  no  provision  in  it,  which  is  operative  or  valid  as  to 
sales,  or  offers  to  sell  by  sample,  any  goods,  wares,  or  merchandise, 
the  growth  or  manufacture  of  any  other  State  or  country  than  the 
State  of  Maine.  And  as  citizens  of  Maine  may  sell  without  re 
striction  by  this  law  any  article  which  is  the  growth  or  manufacture 
of  that  State,  citizens  of  other  States  may  sell  without  regard  to 
this  law  any  article  which  is  the  growth  or  manufacture  of  any 


304  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1865. 

othei  State  or  country.  It  is  only  in  this  way  the  growths  and 
manufactures  of  other  States,  and  the  privileges  of  their  citizens, 
can  he  protected  against  the  unconstitutional  operation  of  this  law. 
It  is  impossible  to  say  that  the  clause  which  declares  the  law  shall 
not  affect  the  sale  of  articles  the  growth  or  manufacture  of  Maine  is 
inoperative.  The  Legislature  of  Maine  had  the  power  to  make  this 
provision,  and  hy  force  of  it  no  sale  of  such  an  article  can  come 
within  the  law.  But  the  Legislature  had  not  the  power  to  enact 
that  the  sales  of  other  articles  should  come  under  a  different  rule 
of  restriction  from  that  which  governs  the  sales  of  the  products 
and  manufactures  of  Maine ;  and  the  courts  must  declare  that  the 
attempt  to  bring  the  former  under  a  different  rule  is  inoperative 
and  void. 

My  opinion  is,  that  the  law  has  no  force  as  against  persons  offer 
ing  for  sale  by  sample  merchandise  belonging  to  citizens  of  States 
other  than  Maine,  especially  if  such  merchandise  be  not  the  growth 
or  manufacture  of  Maine. 

B.  R.  CURTIS. 
June  2,  1865. 

CONSTITUTIONAL  LAW.  — EX  POST  FACTO  LEGISLATION. 

OPINION. 

My  opinion  has  been  requested  upon  the  question  whether  the 
fourteenth  section  of  the  act  of  March  3d,  1803,  (12  Stats,  at 
Large,  741,)  enables  the  United  States  to  maintain  an  action,  or 
proceeding,  for  the  recovery  of  a  fine,  penalty,  or  forfeiture  incurred 
by  reason  of  an  act  done  or  omitted  more  than  five  years  before  the 
passage  of  that  act. 

Ex  post  facto  laws  are  forbidden  by  the  Constitution  of  the 
United  States ;  and  in  my  opinion,  if  the  law  in  question  were  so 
interpreted  and  applied  as  to  maintain  an  action  or  proceeding  to 
recover  a  fine,  penalty,  or  forfeiture  for  a  past  act  not  otherwise 
recoverable,  because  completely  barred,  it  would  be  an  ex  post  facto 
law,  within  the  prohibition  of  the  Constitution. 

It  is  true  that,  strictly  speaking,  such  a  law  has  not  the  effect  to 
make  an  innocent  act  criminal,  nor  enhance  the  punishment  or 
aggravate  the  crime,  or  perhaps  to  change  the  rules  of  evidence 
existing  when  the  offence  was  committed ;  and  these  are  the  effects 
usually  specified  as  descriptive  of  the  character  of  an  ex  post  facto 


1865.]  OPINIONS    GIVEN   AT   THE   BAR.  305 

law.  But  I  am  of  opinion  that  they  are  but  instances,  and  do  not 
exhaust  all  cases  in  which  a  law  may  be  ex  post  facto  under  our 
Constitution ;  and  that  the  reason  why  they  are  instances  is  be 
cause,  in  each  of  them,  a  law  enacted  after  the  act  done  introduces 
a  new  rule  of  decision,  by  force  of  which  the  citizen  may  be  convicted 
and  punished  as  he  could  not  have  been  under  any  rules  of  decision 
existing  when  the  act  was  done. 

If  a  law  introduces  and  makes  obligatory  on  the  courts  any  rule 
of  decision,  by  force  of  which  a  citizen  becomes  punishable  for 
what  he  was  not,  at  the  passage  of  the  law,  punishable,  such  law  is, 
as  to  his  case,  ex  post  facto ;  and  it  is  not  material  what  is  the 
precise  character  of  the  rule,  or  by  what  precise  mode  of  operation 
it  is  to  have  this  effect. 

In  the  case  proposed,  it  was  incumbent  on  the  prosecutor,  at 
the  time  of  the  passage  of  this  act,  to  prove  that  the  accused  had 
committed  the  offence  within  five  years  before  the  institution  of  the 
suit  or  proceeding.  Failing  to  prove  this,  the  prosecution  must 
fail.  Now,  a  law  which  dispenses  with  this  proof,  and  requires  a 
conviction  whenever  the  offence  was  committed,  relieves  the  prose 
cutor  from  one  of  the  requirements  of  the  existing  law,  and  thereby 
subjects  the  citizen  to  conviction  and  punishment,  which  could  not 
have  been  awarded  under  the  law  existing  when  the  act  was  done, 
nor  until  the  new  rule  was  enacted. 

A  statement  of  the  exact  case  will  make  this  plain.  Suppose 
an  information  of  debt  for  a  penalty.  Plea,  the  statute  of  limita 
tions.  Demurrer  by  the  prosecutor.  The  day  before  this  act 
took  effect,  the  judgment  of  law  is  for  the  citizen.  If  the  day  this 
act  takes  effect,  the  judgment  of  law  is  for  the  prosecutor,  does  not 
this  act  subject  the  citizen  to  a  penalty?  Without  it,  the  law 
commands  a  judgment  in  his  favor ;  with  it,  the  law  commands  a 
judgment  against  him.  What  change  in  the  law  has  changed  the 
judgment  ?  This  legislative  act  only  ;  and  if  this  law  alone  has 
changed  a  judgment  for  the  citizen,  by  reason  of  a  past  act,  into  a 
judgment  for  the  government,  for  a  penalty,  how  can  it  be  that 
this  act  is  not  ex  post  facto  ? 

I  can  see  no  distinction  in  principle  between  such  a  case  and 
the  enactment  of  a  new  rule  of  evidence,  or  dispensing  with  any 
legal  element  necessary  to  a  conviction  when  the  act  was  done. 

In  truth,  the  new  law  does  dispense  with  one  of  the  elements 
necessary  to  a  conviction ;  for  the  law  previously  made  the  time  of 
VOL.  i.  20 


306  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1865. 

instituting  the  proceeding  an  essential  element  necessary  to  a  con 
viction, —  just  as  essential  as  the  corpus  delicti  itself. 

In  the  leading  opinion  of  Judge  Chase  on  this  subject,  (  Calder 
v.  Bull,  3  Dal.  390,)  it  is  said  that "  the  prohibition  is  an  additional 
bulwark  in  favor  of  the  personal  security  of  the  subject,  to  protect 
his  person  from  punishment  by  legislative  acts  having  a  retrospec 
tive  operation."  It  is  plain  he  did  not  mean  to  include  only  those 
acts  which  themselves  prescribe  the  punishment,  for  he  expressly 
instances  those  which  merely  change  the  rule  of  evidence.  What 
he  intended  was  protection  against  all  legislative  acts  having  a 
retrospective  operation,  to  render  the  subject  punishable  who 
without  such  acts  would  be  dispunishable  ;  whether  such  acts 
should  newly  define  the  offence,  or  establish  new  rules  for  its  proof, 
or  take  away  a  defence  given  by  the  existing  law,  complete  and 
perfect  at  the  time  of  the  passage  of  the  retrospective  act. 

There  'is  certainly  some  want  of  comprehensiveness  in  the  defi 
nitions  which  have  been  attempted  of  ex  post  facto  laws.  Perhaps 
as  good  a  description  as  is  to  be  found  in  our  books,  is  that  of  Chief 
Justice  Richardson  in  3  N.  H.  Rep.  476.  "  It  therefore  seems 
that  a  retrospective  law  for  the  punishment  of  an  offence,  within 
the  meaning  of  our  Bill  of  Rights,  must  be  a  law  made  to  punish  an 
act  previously  done,  or  to  increase  the  punishment  of  such  act,  or 
in  some  way  to  change  the  rules  of  law  in  relation  to  its  punish 
ment,  to  the  prejudice  of  him  who  committed  it.  In  other  words, 
it  must  be  a  law  establishing  a  new  rule  for  the  punishment  of  an 
act  already  done."  Close  analogies  might  be  added  in  favor  of  this 
conclusion. 

The  Constitutions  of  some  States  guard  rights  of  property 
against  retrospective  laws.  Under  these  it  has  been  held,  that  a 
law  so  extending  the  statute  of  limitations  as  to  cut  off  existing 
rights  of  property  (ICennebec  Purchase  v.  Laborer,  2  Greenl.  275  ; 
Webster  v.  Cooper,  14  How.  495),  or  a  law  repealing  a  statute  of 
limitations  as  respects  claims  already  barred,  is  inoperative  and 
void.  (  Willard  v.  Harvey,  4  Foster,  344 ;  Briggs  v.  Hubbard, 
19  Vt.  86.) 

Surely,  the  rights  of  the  citizen  in  respect  to  his  personal  liberty 
and  his  security  against  penalties,  which  are  protected  by  the  arti 
cle  now  in  question,  are  not  to  receive  a  less  liberal  interpretation ; 
and  if  a  right  of  private  action  barred  by  the  statute  of  limitations 
cannot  be  revived  by  the  Legislature,  because  prohibited  from 


1865.]  OPINIONS   GIVEN   AT   THE   BAB.  307 

affecting  the  rights  of  property  involved  in  civil  actions,  how  can 
the  rights  of  persons  involved  in  penal  actions  be  affected  by  the 
Legislature,  by  reviving  such  rights  when  completely  barred  ?  If 
the  former  kind  of  retrospective  laws  is  void  as  interfering  with 
civil  rights,  how  can  the  latter  be  held  operative  when  they  act  in 
the  same  way,  and  to  the  same  extent,  to  subject  citizens  to  fines 
and  forfeitures  ? 

If,  therefore,  it  were  necessary  to  understand  from  the  repealing 
act  of  Congress  now  in  question,  that  it  was  the  intention  of  the 
Legislature  to  have  this  law  so  act  as  to  render  punishable  acts  not 
punishable  by  law  when  it  was  passed,  I  should  say,  without 
hesitation,  such  intent  cannot  prevail.  But  it  is  not  necessary  to 
attribute  to  Congress  any  such  purpose,  not  only  inconsistent  with 
the  Constitution,  but  repugnant  to  the  whole  course  of  modern 
legislation. 

In  Adams  v.  Woods,  2  Cranch,  336,  Mr.  Chief  Justice  Marshall, 
in  considering  whether  an  act  of  limitations  should  be  construed  as 
extending  only  to  offences  theretofore  enacted,  says  :  "  In  expound 
ing  this  law.  it  deserves  some  consideration,  that,  if  it  does  not 
limit  actions  of  debt  for  penalties,  those  actions  might,  in  many 
cases,  be  brought  at  any  distance  of  time.  This  would  be  utterly 
repugnant  to  the  genius  of  our  laws.  In  a  country  where  not 
even  treason  can  be  prosecuted  after  a  lapse  of  three  years,  it 
could  scarcely  be  supposed  that  an  individual  would  remain  for 
ever  liable  to  a  pecuniary  forfeiture." 

Add  to  this,  that,  if  it  be  possible  so  to  construe  a  law  as  not  to 
operate  on  existing  vested  rights,  it  shall  be  so  construed.  (Dash 
v.  Van  Kleeck,  7  Johns.  477  ;  Moon  v.  Darden,  2  Ex.  Rep.  722.) 
And  that,  if  otherwise  construed,  it  is  an  ex  post  facto  law.  In  such 
a  case  I  do  not  think  the  intention  of  Congress  to  make  this  law 
operate  on  cases  where  the  statute  of  limitations  had  already  con 
stituted  a  complete  bar,  can  be  found  or  assumed.  Its  terms  do 
not  import  any  such  violent  infringement  of  principles  or  rights. 
It  simply  repeals  two  statutes  of  limitations  so  far  as  they  embrace 
a  class  of  cases. 

That  it  was  the  intention  of  the  Legislature  to  have  all  past 
cases  of  that  character  tried  without  regard  to  lapse  of  time,  is  not 
expressed,  and  surely  is  not  to  be  implied. 

B.  R.  CURTIS. 

May  3,  1865. 


308  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1867. 

CONSTITUTIONAL  LA W.  —  OBLIGATION  OF  CONTRACTS. 

CASE. 

The  Legislature  of  Michigan  on  the  15th  of  February,  1859, 
passed  the  following  act. 

AN  ACT 

To  encourage  the  Manufacture  of  Salt  in  the  State  of  Michigan. 
[See  Laws,  1859,  page  551.] 

Sect.  1.  The  People  of  the  State  of  Michigan  enact,  That  all  companies  or 
corporations  formed,  or  that  may  be  formed,  for  the  purpose  of  boring  for 
and  manufacturing  salt  in  this  State,  and  any  and  all  individuals  engaged, 
or  to  be  engaged,  in  such  manufacture,  shall  be  entitled  to  the  benefits  of  the 
provisions  of  this  act. 

Sect.  2.  All  property,  real  and  personal,  used  for  the  purpose  mentioned 
in  the  first  section  of  this  act,  shall  be  exempt  from  taxation  for  any  purpose. 

Sect.  3.  There  shall  be  paid  from  the  treasury  of  the  State,  as  a  bounty, 
to  any  individual,  or  company,  or  corporation,  the  sum  of  ten  cents  for  each 
and  every  bushel  of  salt  manufactured  by  such  individual,  company,  or 
corporation,  from  water  obtained  by  boring  in  this  State  :  Provided,  That 
no  such  bounty  shall  be  paid  until  such  individual,  company,  or  corporation 
shall  have  at  least  five  thousand  bushels  of  salt  manufactured. 

Approved,  February  15,  1859. 

This  act  took  effect  May  16,  1859. 

The  questions  submitted  are,  — 

1st.  Whether  the  second  section  of  this  act  amounted  to  a  con 
tract  with  such  persons  or  corporations  as  should  thereafter  use 
real  and  personal  property  for  the  purposes  mentioned  in  the  first 
section  of  the  act,  that  while  so  used  such  property  should  be 
exempt  from  taxation,  so  that  the  repeal  of  the  act  would  impair 
the  obligation  of  a  contract,  and  therefore  be  invalid. 

2d.  Whether  the  Legislature  had  the  power,  by  a  repeal  of  the 
third  section  of  the  act,  to  deprive  of  the  bounty  therein  mentioned 
all  persons  who  should  manufacture  salt  after  such  repeal  took 
effect. 

OPINION. 

Upon  the  first  of  these  questions  I  am  of  opinion  that  the  second 
section  of  the  act  does  contain  a  grant  of  the  right  of  exemption 
from  taxation,  which  grant  became  operative,  and  amounted  to  a 
contract,  when  accepted  by  employing  real  and  personal  property 
for  the  purpose  mentioned  in  the  first  section.  The  language  em- 


1867.]  OPINIONS   GIVEN   AT   THE  BAR.  309 

ployed  is  clear  and  explicit.  The  exemption  promised  is  complete. 
There  is  no  limitation  of  time  during  which  the  exemption  is  to 
exist.  Its  duration  is  made  to  depend  only  on  the  continuance  of 
the  special  use  of  the  property.  In  my  judgment  this  is  clearly  a 
contract,  the  obligation  of  which  would  be  impaired  by  a  repeal  of 
this  section. 

It  comes  fully  within  the  principles  settled  by  the  Supreme 
Court  of  the  United  States  in  New  Jersey  v.  Wilson,  7  Cranch, 
164;  Gordon  v.  Appeal  Tax  Court,  3  How.  133;  State  Bank  of 
Ohio  v.  Knoop,  16  How.  369;  Dodge  v.  Woolsey,  18  How.  331  ; 
Jefferson  Branch  Bank  v.  Kelly,  1  Black,  436. 

This  case  is  also  clearly  distinguishable  from  Hector,  fyc.  v. 
Philadelphia,  24  How.  300.  The  exemption  from  taxation  in 
that  case  was  a  mere  gratuity.  There  was  no  consideration  for 
any  contract,  and  the  law  was  held  to  be  repealable.  Here  the 
application  of  the  property  to  the  use  which  the  Legislature  de 
sired  to  encourage,  amounts  to  a  valuable  consideration  for  the 
grant. 

The  second  question  is  attended  with  more  difficulty.  In  terms, 
the  promise  of  the  State  to  pay  a  bounty  is  explicit.  The  purpose 
to  induce  persons  to  engage  in  the  manufacture  of  salt,  by  this  offer 
of  a  bounty  on  its  production,  is  equally  clear.  The  acceptance  of 
this  offer,  and  the  making  of  the  investments  of  capital  necessary 
for  the  manufacture,  constitute  an  adequate  consideration  for  a 
complete  contract,  and,  at  first  view,  it  may  seem  impossible  to  dis 
tinguish  the  case  presented  by  the  second  section  from  that  pre 
sented  by  the  third  section.  But,  after  much  reflection,  I  am  of 
opinion  that  such  a  distinction  exists,  and  that  it  is  quite  certain 
that  the  Supreme  Court  of  the  United  States  would  fix  upon  it. 

This  distinction  is  found  in  the  nature  and  the  subject-matter 
of  the  offer  itself. 

In  its  nature  it  is  the  offer  of  a  gratuity.  It  is  true  that  the 
producer,  to  entitle  himself  to  it,  must  first  produce  the  article  on 
which  the  bounty  is  to  be  paid.  But  this  is  true  in  all  cases  of 
bounties.  It  is  also  true,  that  in  this  case  the  producer  must  invest 
capital  in  the  manufacture.  But  this  again  is  also  true  of  the 
means  of  production  of  all  things  on  the  production  of  which  gov 
ernments  have  offered  bounties.  The  question  is,  whether  the  offer 
of  a  bounty  on  an  article,  when  viewed  in  reference  to  the  nature 
and  circumstances  of  the  offer  and  the  practice  of  governments  in 


310  MEMOIR    OF   BENJAMIN  BOBBINS   CURTIS.  [1867. 

such  cases,  binds  the  government  to  continue  to  pay  the  bounty 
so  long  as  any  one  shall  continue  to  produce  that  article ;  or 
whether  it  is  a  measure  dependent  on  the  policy  of  the  government, 
and  to  be  changed  at  its  pleasure ;  and  I  am  of  opinion  that  the 
latter  is  the  true  character  of  the  offer,  and  that  there  would  be  no 
reasonable  chance  of  inducing  the  Supreme  Court  of  the  United 
States  to  take  a  different  view  of  it. 

The  practice  of  governments,  both  of  the  States  and  of  the 
United  States,  has  been  to  consider  such  offers  dependent  on  the 
pleasure  of  the  legislative  power.  Considerations  derived  from 
the  expediency  of  continuing  such  offers,  and  the  intrinsic  injustice 
of  withdrawing  them,  have  been  relied  on.  I  am  not  aware  that 
they  have  ever  been  treated  as  necessarily  of  continuing  obligation. 
They  are  measures  of  policy  usually  dependent  on  temporary 
causes,  and  generally  experimental  merely,  and  where,  as  in  case 
of  the  fishing  bounties,  the  causes  which  have  produced  them  have 
been  supposed  to  be  continuous,  I  do  not  think  it  has  ever  been 
supposed  that  the  government  might  not  judge  freely  whether  to 
repeal  or  continue  them.  I  think  the  offer  of  a  bounty  on  pro 
duction,  like  the  offer  of  a  reward  for  detection  of  crime,  or  any 
similar  public  service,  may  be  withdrawn  at  any  time  before  the 
service  is  performed  ;  and  that  whatever  previous  preparations  for 
the  service  may  have  been  made  must  be  taken  to  have  been  made 
subject  to  the  public  right  to  withdraw  the  offer,  and  not  upon 
the  faith  that  it  would  be  perpetually  continued. 

The  decisions  made  upon  the  first  question  above  proposed, 
though  they  have  upheld,  with  a  firm  hand,  the  validity  of  an  ex 
emption  from  taxation  founded  on  an  investment  of  property  made 
on  the  faith  of  it,  and  the  acceptance  of  such  an  offer,  have  also 
asserted  with  equal  strength  the  principle  that  contracts  are  not  to 
be  deduced  from  legislation  when  there  is  any  reasonable  doubt  of 
the  intention  of  the  legislative  power  to  propose  them.  In  the 
present  state  of  the  Supreme  Court  of  the  United  States,  I  should 
riot  anticipate  any  extension  of  these  principles,  and  I  ought  to  add, 
that  I  am  quite  satisfied  that  there  ought  not  to  be  any  such  exten 
sion  of  them  as  would  make  the  offer  of  a  bounty  by  a  State,  on 
the  production  of  any  article,  an  irrepealable  contract  to  pay  that 
bounty  so  long  as  any  one  should  choose  to  produce  it. 

B.  R.  CURTIS. 
BOSTON,  May  16,  1867. 


yf 

1868.]  OPINION   GIVEN   AS   AN   AIIBITRATOB^W  f  .    311 

^S 

A  case  which  came  before  Judge  Curtis  as  an  arbitr? 
in  1868,  by  the  voluntary  submission  of  the  parties,  related 
to  the  proprietary  rights  of  the  States  to  their  lands  under 
the  water  of  the  sea,  and  to  the  right  of  laying  submarine 
telegraph  cables  on  the  shores  of  a  State.  The  questions 
arose  in  the  following  manner :  — 

Charles  Havard  and  C.  C.  Leigh  obtained,  from  the 
Legislature  of  the  State  of  New  York,  an  exclusive  right 
and  privilege,  for  a  period  of  years,  to  land  and  work  a 
telegraphic  cable  between  the  empire  of  France  and  the 
State  of  New  York.  By  an  agreement  in  writing,  executed 
in  London,  July  31,  1868,  they  sold  and  conveyed  this 
right  to  Emile  d'Erlanger,  for  the  sum  of  £  12, 000  ;  part  of 
which  sum  was  paid  in  cash,  and  the  balance  was  made 
payable  on  the  following  condition:  That  the  Hon.  Sal 
mon  P.  Chase,  Chief  Justice  of  the  United  States,  should, 
as  an  arbitrator  between  the  parties,  decide  and  certify  that 
in  his  opinion  this  grant  w^ould  legally  and  effectually  enable 
the  grantees,  or  their  assigns,  to  prevent  and  hinder  the 
laying  and  working  of  a  telegraphic  cable  from  the  empire 
of  France  to  any  part  of  the  waters,  reefs,  islands,  shore? 
and  lands  of  the  State  of  New  York,  by  any  person  or  pei 
sons  claiming  authority  to  do  so  under  or  by  virtue  of  any 
concession  granted,  or  which  might  thereafter  be  granted, 
by  the  Congress  of  the  United  States,  or  by  the  State  of 
New  York,  or  under  or  by  virtue  of  the  riparian  and  pro 
prietary  rights  of  any  owner  of  land  lying  on  the  shores 
of  the  State  of  New  York,  or  any  of  the  islands  on  the 
coast  of  the  State.  The  agreement  of  submission  further 
provided,  that  if  Chief  Justice  Chase  should  decline  to  act 
as  arbitrator  of  these  questions,  he  should  have  power  to 
appoint  a  substitute  arbitrator,  whose  opinion  and  award 
in  the  premises  should  be  final  between  the  parties. 

Chief  Justice  Chase  declined  to  act,  for  the  reason  that 
the  questions  were  of  such  a  nature  that  they  might,  in 
some  other  case,  come  before  him  judicially;  and  he 


312  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1868. 

appointed  Judge  Curtis  as  his  substitute.  Judge  Curtis 
heard  the  parties  in  the  city  of  New  York,  in  December, 
1868,1  and  soon  afterward  made  the  following 

AWARD. 

Pursuant  to  the  agreement,  a  copy  whereof  is  hereunto  annexed 
and  marked  A,  and  to  the  nomination  by  the  Hon.  S.  P.  Chase, 
Chief  Justice  of  the  United  States,  of  the  undersigned  to  act  in  the 
premises,  a  copy  of  which  nomination  is  also  hereto  annexed  and 
marked  B,  the  undersigned  has  met  and  heard  the  parties  by  their 
respective  counsel,  and,  pursuant  to  the  authority  conferred  on  him 
by  the  said  paper  writings,  copies  whereof  are  annexed  as  aforesaid, 
has  made  his  decision  in  the  premises  in  manner  following :  — 

I  do  hereby  express  my  opinion,  and  declare  that  in  my  judg 
ment  the  said  parties  of  the  second  part  named  in  the  said  agree 
ment,  a  copy  whereof  is  marked  A,  as  aforesaid,  have  acquired 
under  the  said  two  acts  of  the  Legislature  of  the  State  of  New 
York  referred  to  in  the  said  paper  writing  marked  A,  and  under 
the  assignment  and  transfer  made  by  the  original  of  the  said  paper 
writing,  a  copy  whereof  is  marked  A,  such  an  exclusive  right  and 
privilege  to  land  and  work  a  telegraphic  cable  between  the  empire 
of  France  and  the  said  State  of  New  York  as  will  enable  the  said 
parties  of  the  second  part  legally  and  effectually  to  prevent  and 
hinder  the  laying  and  working  of  a  telegraphic  cable  from  the 
empire  of  France  to  any  part  of  the  waters,  reefs,  islands,  shores, 
and  lands  of  the  State  of  New  York  by  any  person  or  persons 
claiming  authority  to  do  so  under  or  by  virtue  of  any  concession 
granted,  or  which  may  hereafter  be  granted,  by  the  Congress  of  the 
United  States,  or  by  the  said  State  of  New  York,  or  under  and  by 
virtue  of  the  riparian  and  proprietary  rights  of  any  owner  of  land 
lying  on  the  shores  of  the  said  State  of  New  York,  or  any  of  the 
islands  on  the  coast  of  the  said  State. 

In  testimony  whereof  I  have  hereunto  set  my  hand,  this  twenty- 
sixth  day  of  December,  A.  D.  eighteen  hundred  and  sixty-eight. 

B.  R.  CURTIS. 

1  For  the  assignee,  in  opposition  to  the  exclusive  character  of  the  grant, 
the  questions  were  argued  by  Mr.  W.  W.  MacFarland.  Mr.  George  Ticknor 
Curtis  argued  for  the  assignors,  in  support  of  their  claim  to  receive  the  bal 
ance  of  the  purchase-money. 


1868.]  OPINION   GIVEN  AS   AN   ARBITEATOB.  313 

OPINION. 

In  the  matter  of  the  arbitration  between  Charles  Havard  and 
others,  of  the  first  part,  and  Emile  d'Erlanger  and  another,  of  the 
second  part,  under  an  agreement  bearing  date  July  31,  1868. 

For  the  information  of  the  parties  and  their  counsel,  but  not 
intending  to  make  the  same  any  part  of  his  award  in  the  premises, 
the  undersigned  states  the  following  grounds  and  reasons  for  the 
formal  award  which  he  has  separately  made  and  certified. 

First.  I  am  of  opinion  that,  at  the  dates  of  the  several  acts  of 
the  Legislature  of  the  State  of  New  York  now  in  question,  that 
State  was  the  proprietor  of  the  soil  on  its  maritime  border  below 
high-water  mark,  as  far  to  the  seaward  as  the  laws  of  nations 
recognize  ownership  of  land  under  tide- waters,  saving  such  spe 
cially  described  parts  thereof  as  before  those  dates  had  been  granted 
in  fee  simple  to  the  United  States,  to  municipal  corporations,  and  to 
private  persons.  No  one  of  these  grants  appears  to  have  extended  a 
considerable  distance  below  low-water  mark,  and  the  soil  of  the  State 
does  extend  some  miles  to  the  seaward  of  each  and  all  of  them. 

Second.  The  State  of  New  York  being  the  proprietor  of  this 
soil,  its  Legislature  had  power  to  make  the  grant  now  in  question. 
That  grant  is  of  the  exclusive  right,  for  the  period  of  twenty  years, 
to  lay,  construct,  maintain,  and  operate  telegraphic  cables  in  and 
over  the  waters,  reefs,  islands,  shores,  and  Jands  over  which  the 
State  of  New  York  has  jurisdiction,  to  connect  the  State  of  New 
York  with  the  empire  of  France.  There  is  a  proviso  to  the  act 
which  shows  the  grant  was  applicable  only  to  such  cables  as  should  be 
landed  from  the  ocean  directly  on  the  shore  of  the  State  of  New 
York  ;  and  not  to  any  cable  landed  from  the  ocean  within  some  other 
jurisdiction  and  connected  thence  with  the  State  of  New  York. 

If  this  had  been  a  transaction  between  private  persons,  the  rights 
derived  from  it  might  be  found  to  rest,  in  part  at  least,  upon  an 
executory  contract ;  but  I  am  of  opinion  that  the  Legislature  of  the 
State,  dealing  with  its  domain,  had  the  power  to  make  a  complete 
executed  grant,  such  as  is  described  in  this  law  ;  which  in  my 
opinion  vested  in  the  grantees  an  exclusive  interest  in  the  soil 
under  tide-water,  which  belonged  to  the  State  so  far  as  the  same 
can  be  used  for  the  purposes  described  in  the  grant.  I  think  it 
clear  that,  by  reason  of  the  prohibition  in  the  Constitution  of  the 
United  States  to  impair  the  obligation  of  a  contract,  the  State  of 
New  York  can  pass  no  law  revoking  or  impairing  this  grant. 


314  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1868. 

It  has  been  argued  with  much  force  and  ability,  that  the  State 
held  that  part  of  its  domain  under  tide-water  in  trust  for  public 
uses ;  that  though  the  only  public  uses  designated  by  legal  writers 
and  judicial  opinions  are  those  of  navigation,  anchorage,  and  fish 
eries,  yet  the  extent  of  the  jus  publicum  is  riot  to  be  measured  by 
the  specific  instances  in  which  it  has  heretofore  been  found  useful 
to  assert  it ;  and  that  the  soil  of  the  sea,  so  far  as  the  State  is  its 
proprietor,  is  held  subject  to  a  public  right  to  lay  telegraphic  cables 
thereon,  and  repair  and  work  them. 

After  much  consideration  I  am  unable  to  come  to  this  conclusion. 

I  must  begin  with  the  clearly  established  position  that  the  State 
is  the  proprietor  of  this  soil,  and  before  I  can  declare  this  owner 
ship  to  be  restricted,  I  must  find  such  restriction  either  expressed 
or  satisfactorily  implied  in  settled  rules  and  principles  of  law,  ap 
plicable  to  the  subject.  I  am  unable  to  find  either  the  one  or  the 
other.  Not  only  is  such  use  not  expressly  included  within  the 
jus  publicum,  but  it  is  of  such  a  nature  as  to  be  distinguished  from 
those  uses  which  are  within  the  jus  publicum.  Neither  of  the 
defined  uses  within  the  jus  publicum  involves  the  exercise  of  any 
permanent  right  in  the  soil  itself.  The  right  to  sail  over,  or 
temporarily  to  cast  anchor  on  this  soil,  or  the  right  to  take  fish 
floating  over  it,  or  shell-fish  resting  on  it,  is  distinct  from  a  right 
permanently  to  occupy  this  soil  by  a  structure  placed  thereon. 
The  former  rights  may  be  exercised  and  enjoyed  by  the  public. 
Like  a  right  of  way  on  land,  each  one  in  his  turn,  and  according  to 
his  wants,  may  enjoy  the  right,  but  his  use  is  transitory,  and  his 
right  must  be  exercised  only  in  such  reasonable  time  and  manner 
as  not  to  interfere  with  the  common  right  of  others.  They  are 
rights  which  may  and  do  exist  in  common,  and  be  enjoyed  by  all 
equally.  But  the  right  to  place  permanent  structures  on  the  soil, 
arid  keep  them  there,  and  have  unobstructed  access  to  them  for  use 
and  repairs,  cannot  be  in  any  proper  sense  a  public  and  common 
right.  A  right  to  possess  and  use  the  soil  permanently  and  exclu 
sively  is  in  its  nature  a  several  and  private,  and  not  a  common  and 
public  right. 

It  is  true  that  a  telegraphic  cable  is  designed  to  be  used  by  the 
public,  and,  looking  to  that  ultimate  design  only,  this  use  of  the 
soil  may  be  considered  a  public  use ;  just  as  the  soil  belonging  to 
a  private  person,  taken  under  the  power  of  eminent  domain,  for  the 
construction  of  a  railroad,  is  taken  for  a  public  use.  But  soil  so 


1863.]  OPINION   GIVEN   AS   AN   ARBITRATOR.  315 

taker  is  appropriated  also  to  the  private  use  and  ownership  of  the 
railroad  corporation,  which  takes  and  exclusively  owns  it  for  all 
the  purposes  of  a  railroad,  and  within  the  limits  of  the  authority 
conferred  by  its  charter  such  a  corporation  controls  the  use  of  this 
property,  for  its  private  advantage,  as  effectually  and  absolutely  as 
a  private  person  controls  the  use  of  his  own  house. 

In  this  and  other  similar  cases,  property  belonging  either  to 
private  persons  or  to  the  domain  of  the  State  is  acquired  and  held 
as  private  property ;  but  by  the  act  which  enables  its  acquisition  it 
is  made  subject  to  certain  defined  public  uses. 

It  is  a  settled  question  in  American  constitutional  jurisprudence, 
that  the  power  of  eminent  domain  is  broad  enough  to  take  prop 
erty  for  such  individual  ownership,  if  some  public  necessity  is  the 
ultimate  reason  for  the  grant.  But  in  all  such  cases  the  public  use, 
so  far  as  it  exists,  is  impressed  on  and  arises  out  of  the  act  of  taking 
by  force  of  the  controlling  legislative  authority  which  enables  the 
act  of  taking ;  and  this  impresses  on  all  the  property  taken,  whether 
it  be  private  property,  or  whether  it  be  a  part  of  the  public  domain, 
those  denned  public  rights  which  the  legislative  power  has  deemed 
to  be  at  once  the  consideration  for  its  grant  of  power  to  take  prop 
erty,  and  the  reason  for  the  delegation  of  that  power. 

In  other  words,  it  may  be  said,  that  the  reason  why  the  legisla 
tive  power  may  authorize  the  taking  of  private  property  and  ap 
propriate  the  domain  of  the  State  to  the  ownership  of  individuals 
and  private  corporations  is,  that  the  legislative  power,  at  the  same 
time  that  it  makes  such  grants,  makes  the  property  so  acquired 
subject  to  certain  denned  public  necessities.  But  what  I  have  to 
consider  in  this  connection  is  not  the  legislative  power  to  subject 
either  the  lands  of  private  persons,  or  the  domain  of  the  State,  to 
that  individual  ownership,  and  that  subservience  to  public  wants 
impressed  by  the  act  enabling  their  acquisition,  but  the  question 
whether,  independent  of  any  specific  action  of  the  legislative  power, 
the  maritime  soil  of  the  several  States  is  held  to  any  other  public 
use  besides  those  of  navigation  and  the  fisheries,  and  I  am  of 
opinion  that  it  is  not  subject  to  any  other  public  rights.  I  am  of 
opinion  that  the  maritime  States  hold  that  part  of  their  soil  below 
high-water  mark  by  as  absolute  a  title  as  they  hold  their  State 
Houses  ;  and  may  make  such  grants  thereof,  exclusive  or  otherwise, 
as  they  may  consider  suitable  and  expedient. 

There  is  another  point  of  view  from  which  this  subject  may 


316  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1868. 

be  looked  at,  and  which  leads  more  directly  to  the  consideration 
whether  the  Congress  of  the  United  States  can  in  any  effectual 
manner  interfere  with  the  grant  made  by  the  State  of  New  York. 

By  the  Declaration  of  Independence,  followed  by  the  treaty  of 
peace  with  Great  Britain,  the  State  of  New  York  became  a  free, 
sovereign,  and  independent  State,  and  in  that  capacity  the  absolute 
owner  of  its  entire  maritime  border  below  high-water  mark,  subject 
only  to  some  possible  restrictions  from  grants  to  individuals  which 
are  of  no  importance  in  this  connection.  This  absolute  ownership 
still  continues  wholly  unimpaired,  save  so  far  as  the  Constitution 
of  the  United  States  has  restricted  its  exercise.  The  only  clause 
of  the  Constitution  which  needs  to  be  here  considered,  is  the  grant 
to  Congress  of  the  power  to  regulate  commerce  between  the  several 
States  and  with  foreign  countries.  This  grant  of  power  to  the 
Federal  government  at  the  same  time  restricted  the  State  of  New 
York  from  making  any  use  of  its  maritime  frontier  inconsistent 
with  the  power  of  Congress  to  regulate  foreign  commerce,  and 
conferred  on  Congress  the  power  to  regulate  that  commerce. 

It  must  be  admitted  that  the  word  "  commerce  "  in  the  Constitu 
tion  extends  to  mere  intercourse,  and  is  not  restricted  to  traffic ; 
and  that  consequently  that  kind  of  communication  with  a  foreign 
country  which  is  carried  on  by  means  of  a  telegraphic  cable  is 
commerce  with  a  foreign  country  within  the  meaning  of  that  clause 
of  the  Constitution,  and  consequently  may  be  regulated  by 
Congress. 

It  is  a  theory  of  recent  origin,  that,  under  its  power  to  regulate 
commerce,  Congress  may  empower  individuals,  or  a  corporation 
created  by  it,  to  take  lands  and  erect  structures  to  carry  on  that 
commerce.  I  do  not  find  it  necessary  to  enter  into  any  inquiry  on 
this  disputed  power.  Because  I  do  not  understand  that  I  am  to 
decide  what  may  be  taken  away  under  the  power  of  eminent 
domain,  but  what  was  effectually  granted.  I  must  assume  that 
both  these  parties  knew  that  all  property  in  this  and  other  civilized 
countries  is  held  subject  to  the  power  of  the  government  to  take 
and  pay  for  it,  and  therefore  it  is  not  a  question  whether  some 
power  in  the  United  States  may  subject  what  is  granted  to  some 
permanent  public  use,  after  making  just  compensation  for  what 
may  be  thus  taken,  but  only  whether  the  exclusive  rights  in  ques 
tion  are  effectually  granted. 

Looking  at  the  subject  in  this  point  of  view,  the  only  inquiry  is, 


1868.]  OPINION   GIVEN   AS   AN   ARBITRATOR.  317 

whether  Congress,  by  force  of  its  power  to  regulate  foreign  com 
merce,  can  empower  an  individual  or  a  corporation  to  lay  a  tele 
graphic  cable  over  the  maritime  property  of  the  State  of  New 
York  without  taking  it  for  a  public  use,  and  making  compensation 
therefor  to  those  to  whom  the  State  has  granted  its  rights ;  which 
compensation  must  of  course  be  adequate  to  make  good  the  damage 
inflicted. 

And  1  am  clearly  of  opinion,  that  Congress  has  not  this  power. 
The  State  of  New  York  holds  not  only  its  maritime  frontier,  but  all 
its  territory,  subject  to  the  power  of  Congress  to  regulate  commerce 
between  the  States  and  with  foreign  nations.  So  does  each  indi 
vidual  owner  of  lands  and  all  other  property.  But  the  power  to 
regulate  commerce  certainly  no  more  enables  Congress  to  take  the 
private  domain  of  a  State  to  advance  its  policy  of  promoting  com 
merce  with  foreign  nations,  than  it  enables  Congress  to  take  the 
private  domain  of  individuals  without  compensation.  It  is  a  ques 
tion  into  which  I  do  not  find  it  necessary  here  to  enter,  under  what 
conditions  Congress  can  interfere  with  the  private  domain  of  a 
State  without  its  consent.  But  certainly  Congress,  under  its  power 
to  regulate  commerce,  or  under  any  other  power,  cannot  take  away 
from  the  State  or  its  grantees  that  estate  or  interest  in  its  domain 
which  the  State  holds,  or  has  granted  to  private  persons,  without 
first  lawfully  subjecting  it  to  a  public  use  and  making  provision  for 
just  compensation. 

It  is  true,  if  the  State  held  this  part  of  its  public  domain  in  sub 
jection  to  a  specific  public  use,  and  the  regulation  of  that  public 
use  was  under  the  control  of  Congress,  no  compensation  would  be 
demandable  for  such  regulation.  But  it  has  already  been  stated, 
that  in  my  judgment  the  State  does  not  hold  this  part  of  its  domain 
subject  to  this  particular  use,  and  consequently  an  exemption  from 
the  duty  of  compensation  cannot  be  claimed  on  this  ground. 

It  is  hardly  necessary  to  add,  that  the  riparian  owners  whose 
lands  are  bounded  by  the  shore,  or  who  have  special  grants  from 
the  State  of  defined  parts  of  the  soil  under  tide-water,  have  no 
such  rights  in  the  soil  of  the  State  below  these  granted  limits  as 
enable  them  to  interfere  with  the  grants  of  the  State  now  in  ques 
tion.  And  in  these  respects  the  United  States,  as  grantees  of  cer 
tain  defined  parts  of  the  soil,  stand  on  the  same  footing  as  private 
persons,  and  have  no  other  or  greater  rights. 

B.  R.  CURTIS, 


318  MEMOIR   OF   BENJAMIN   BOBBINS  CUBTIS.  [1868. 

LOANS  BY  NATIONAL  BANKS. 

OPINION. 

My  opinion  has  been  requested  on  the  following  questions :  — 

1st.  Would  a  loan  of  more  than  ten  per  cent  of  the  capital  of 
a  national  bank  to  any  one  person,  corporation,  or  firm,  be  valid  or 
void  in  law  ? 

The  29th  section  of  the  National  Banking  Law  is  as  follows  : 
"  That  the  total  liabilities  to  any  association,  of  any  person,  or  of 
any  company,  corporation,  or  firm,  for  money  borrowed,  including 
in  the  liabilities  of  a  company  or  firm  the  liabilities  of  the  several 
members  thereof,  SHALL  at  no  time  exceed  one  tenth  of  the  amount 
of  the  capital  stock  paid  in.  PROVIDED,  that  the  discount  of  bona 
fide  bills  of  exchange  drawn  against  actually  existing  values,  or 
the  discount  of  commercial  or  business  paper  actually  owned  by 
the  person  or  persons,  corporations,  or  firms  negotiating  the  same, 
shall  not  be  considered  as  money  borrowed." 

Such  a  loan  as  is  mentioned  in  the  first  question,  being  in  con 
travention  of  an  express  prohibition  of  the  law  which  governs  and 
limits  the  powers  of  such  banks,  would  create  no  legal  rights  of 
the  bank  or  liabilities  of  the  borrower  capable  of  being  recognized, 
or  enforced,  either  directly  or  indirectly,  in  a  court  of  law  or  equity. 
This  follows  not  merely  from  the  principle  that  an  illegal  contract 
cannot  be  enforced,  but  from  an  absolute  and  total  incapacity  of 
such  a  corporation  to  become  a  creditor  for  a  prohibited  amount. 

2d.  Would  such  contract  of  loan  be  valid  to  the  amount  of  the  ten 
per  cent  of  the  paid-in  capital,  or  void  as  to  the  whole  contract? 

If  a  series  of  loans  should  be  made  from  time  to  time,  until 
their  amount  exceeded  ten  per  cent  of  the  capital  of  the  bank,  only 
such  loan  or  loans  as  were  in  excess  of  the  ten  per  cent  would  be 
made  in  contravention  of  the  law  which  created  the  corporation,  and 
therefore  would  create  no  legal  rights  in  the  corporation  ;  the 
prior  loans  would  be  valid.  But  if  one  loan  of  more  than  ten  per 
cent  should  be  made,  the  entire  contract,  being  in  contravention  of 
the  law,  would  be  inoperative  to  create  any  legal  right  in  the  cor 
poration. 

3d.  Could  a  bank  maintain  an  action  at  law,  or  in  equity,  to 
collect  money  of  a  person,  corporation,  or  firm  to  whom  it  had 
loaned  more  than  ten  per  cent? 

The  answers  already  given  cover  the  subject  of  this  question. 


1868.]  OPINIONS   GIVEN  AT  THE  BAR.  319 

4th.  Does  or  does  not  the  section  apply  directly  to  the  person 
of  the  debtor,  and  limit  the  amount  of  his  debt  to  the  bank  ?  and 
can  he  be  indebted  beyond  the  limit  specified  in  the  law  ? 

A  person  cannot  be  legally  indebted  to  a  bank  for  an  amount 
prohibited  by  law. 

5th.  What  is  meant  by  the  term  liabilities,  (observe  the  word 
appears  three  times  in  the  section,)  and  does  it,  or  does  it  not,  mean 
to  include  indorsements,  as  well  as  direct  debts  ? 

The  word  liabilities  includes  every  form  of  liability,  absolute 
and  conditional,  except  those  included  in  the  proviso.  The  liability 
of  a  drawer  or  indorser  of  a  bill  of  exchange  not  drawn  against 
actually  existing  values,  and  the  liability  of  an  indorser  of  a  note, 
not  being  business  paper,  owned  by  the  indorser  and  discounted  for 
him,  are  included. 

This  is  clear,  not  only  because  the  word  liabilities  is  broad 
enough  to  include  the  contracts  of  drawer  and  indorser,  but  because 
the  proviso  has  excepted  certain  drawers  and  indorsers  specially 
described,  thus  leaving  all  others  within  the  prohibition. 

6th.  If  the  bank,  having  loaned  over  the  amount,  or  say  three 
times  the  amount,  the  law  allows  to  one  person,  firm,  or  corporation, 
and  having  received,  and  holding  large  quantities  of  collaterals, 
could  or  could  not  any  legal  creditors  of  the  debtor,  by  proper 
action  (say  trover),  sue  the  bank,  and  apply  such  securities  to  the 
payment  of  these  debts,  if  the  contract  of  loan  was  illegal  ? 

If  the  bank  holds  collaterals  for  a  void  contract,  any  creditor  ot 
the  general  owner  of  those  collaterals  may  reach  them,  and  subject 
them  to  the  payment  of  his  debt,  by  resorting  to  proper  legal  pro 
ceedings  for  that  purpose.  What  proceedings  would  be  proper 
must  depend  on  the  laws  of  the  place  where  they  are  to  be  had. 
If  the  creditor  has  recovered  a  judgment  at  law,  and  his  execution 
has  been  returned  nulla  bona,  he  may  then  have  the  aid  of  a 
court  of  equity  to  reach  and  apply  the  collaterals  to  the  payment 
of  his  debt.  In  some  States  the  process  of  garnishment  would  be 
sufficient. 

7th.  Would  the  deposit  of  stocks  and  bonds  with  a  bank  as 
general  collateral,  where  money  is  loaned  thereon  in  excess  of  the 
amount  allowed  by  law,  be  such  a  transaction  as  to  come  within 
the  proviso  in  the  29th  section? 

I  answer  this  question  in  the  negative. 

8th.  Would  the  forfeiture  provided  in  the  53d  section  operate 


320  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1865. 

to  sustain  the  right  of  the  bank  to  recover  on  such  contract,  and 
leave  them  subject  to  be  proceeded  against  by  the  Comptroller  ? 

I  answer  this  question  in  the  negative.  Corporations  cannot 
maintain  actions  on  contracts  which  they  are  prohibited  from  mak 
ing,  whether  such  acts  are  or  are  not  cause  of  forfeiture  of  their 
charter. 

B.  R.  CURTIS. 
BOSTON,  May,  11,  1868. 

In  March,  1865,  the  Hon.  Peleg  Sprague  who  had  held 
the  office  of  Judge  of  the  District  Court  of  the  United 
States  for  the  District  of  Massachusetts  during  a  period  of 
three  and  twenty  years,  retired  from  the  bench.  Judge 
Curtis,  in  compliance  with  the  request  of  the  bar,  prepared 
and  presented  to  Judge  Sprague  the  following  Address  of  the 
Bar  of  the  United  States  Courts :  — 

ADDRESS. 

To  THE  HONORABLE  PELEG  SPRAGUE:  — 

SIR,  —  The  members  of  the  bar  of  the  courts  of  the  United 
States,  in  which  you  have  presided  during  the  last  twenty-three 
years,  cannot  allow  you  to  withdraw  yourself  from  the  office  of 
judge  without  an  expression  of  their  high  estimate  of  your  public 
services,  their  profound  respect  for  your  judicial  qualities  and  at 
tainments,  and  their  grief  for  the  physical  disability  which  has 
caused  your  retirement.  They  esteem  it  to  be  due  to  their 
country,  to  you,  and  to  themselves,  that  they  should  bear  their 
testimony  to  the  great  value  of  those  services,  and  to  the  rare  com 
bination  of  intellectual  and  moral  powers  which  alone  could  make 
them  possible. 

They  have  found  you  to  be  not  only  thoroughly  instructed  in 
the  common  law,  but  master  of  those  special  branches  of  juris 
prudence  and  legislation  which  it  has  been  your  peculiar  province 
to  administer. 

They  have  found  in  you  such  power  of  analysis  as  they  have  not 
known  surpassed,  united  with  sound  judgment  to  weigh  its  results. 

They  have  found  in  you  that  absolute  judicial  impartiality 
which  can  exist  only  when  a  tender  and  vigilant  conscience  is 
joined  to  an  instructed  and  self-reliant  intellect  and  a  firm  will. 

And  these  great  powers  and  attainments  have  been  used  by  you 


1865.]  RETIREMENT   OF   JUDGE   SPRAGUE.  321 

so  steadily,  so  patiently,  so  continuously,  through  more  years  than 
are  comprised  in  the  professional  life  of  most  of  us,  that  we  have 
scarcely  known,  and  your  patience  and  courtesy  have  never  allowed 
us  to  realize,  that  during  much  of  the  time  you  have  been  a  sufferer 
from  physical  pain,  and  that  during  all  the  time  you  have  been  in 
a  great  measure  unaided  by  that  precious  sense  of  sight,  without 
which  such  labors  as  yours  would  have  seemed  impossible. 

We  are  heartily  thankful  for  the  great  benefits  you  have  con 
ferred,  not  on  us  only,  but  on  this  community,  and  on  our  country, 
whose  judicial  bench  you  have  strengthened  and  illustrated. 

We  deplore  the  cause  which  has  seemed  to  render  your  retire 
ment  necessary. 

Would  that  it  were  in  our  power  to  do  something  to  alleviate 
your  condition,  instead  of  giving  expression  to  our  sorrows  and  to 
our  affectionate  respect.1 

B.  R.   CURTIS, 
CHARLES  G.  LORING, 
SIDNEY  BARTLETT, 

J.  H.  CLIFFORD, 
T.  D.  ELIOT, 
GEORGE  LUNT, 
G.  S.  HILLARD, 
H.  W.  PAINE, 
JOHN    C.  DODGE, 
R.  H.  DANA,  JR. 

C.  L.    WOODBURY, 

S.  H.  PHILLIPS, 

Committee  of  the  Bar. 
BOSTON,  March  27,  1865. 

1  In  explanation  of  some  of  the  allusions  in  this  address  to  the  physical 
infirmities  of  Judge  Sprague,  it  may  be  stated  that  for  many  years  he  had 
been,  though  not  blind,  deprived  of  all  use  of  his  eyes  in  either  writing  or 
reading.  Yet  such  was  his  extraordinary  power  of  memory,  and  the  disci 
pline  to  which  he  had  subjected  himself,  that  he  would  preside  at  a  long  and 
complicated  trial,  and  charge  the  jury  with  perfect  accuracy,  without  mis- 
recollecting  or  misstating  any  part  of  the  testimony.  The  writer  of  this 
work  has  personally  known  him  to  do  this  in  a  patent  cause  lasting  through 
many  days,  without  recourse  to  a  note  of  any  kind.  Whenever  a  dispute 
arose  between  counsel  as  to  what  a  witness  had  said,  Judge  Sprague's  recol 
lection  of  the  testimony  was  always  received  with  implicit  and  unquestioning 
submission.  Such  intellectual  feats  would  have  been  almost  incredible,  if 
they  had  not  been  repeatedly  witnessed. 
VOL.  i.  21 


322  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1860. 


CHAPTER  XL 

I860. 

Change  of  Religious  Sentiments.  —  No  Change  in  Religious  Character. 

I  HAVE,  in  a  former  chapter,  spoken  of  the  early  religious 
impressions  which  my  brother  derived  from  the  influences 
that  surrounded  his  youth.  His  religious  sentiments  and 
opinions  continued  to  be  those  generally  held  by  the  Uni 
tarians  of  New  England,  until  he  was  past  the  middle 
period  of  life.  Immediately  after  his  residence  in  Boston 
began,  he  became  a  constant  attendant  at  King's  Chapel, 
where  there  has  been  in  use,  since  the  year  1785,  a  modi 
fied  form  of  the  Liturgy  of  the  Episcopal  Church,  adapted 
to  the  opinions  and  tastes  of  a  congregation  which  at  that 
time  became  Unitarian.  So  long  as  Dr.  Greenwood,  the 
fervent  and  admirable  preacher  who  was  the  minister  of 
the  Chapel  when  Judge  Curtis  became  a  member  of  its  con 
gregation,  lived,  and  through  the  ministry  of  his  successor, 
Dr.  Peabody,  my  brother  was  satisfied  with  the  preaching 
which  he  there  heard.  But  as  he  grew  older,  and  gave 
more  study  to  certain  parts  of  doctrinal  religion  than  he 
had  at  an  earlier  period  of  his  life,  he  felt  obliged  to  relin 
quish  the  fundamental  dogma  of  the  Unitarian  belief,  and 
to  accept  the  doctrine  of  the  Trinity.  It  happened  that,  at 
about  the  time  when  his  mind  began  to  tend  in  this  direc 
tion,  a  very  distinguished  Unitarian  preacher,  the  Rev.  Dr. 
Huntington,  now  a  Bishop  in  the  Episcopal  Church,  offi 
ciated  a  good  deal  at  King's  Chapel,  after  the  death  of 
Dr.  Peabody.  Dr.  Huntington's  mind,  at  this  time,  was 


I860.]  CHANGE   OF    RELIGIOUS    SENTIMENTS.  323 

tending  towards  a  similar  change  ;  and  his  sermons  gave 
evidence  of  it.  They  found  a  sympathizing  hearer  in  Judge 
Curtis. 

Aware  that  Bishop  Huntington  would  be  able  to  say  all 
that  needs  to  be  said  in  regard  to  this  change  in  my 
brother's  religious  views,  I  wrote  to  him  when  I  had  deter 
mined  to  prepare  this  Memoir,  and  received  from  him  the 
following  reply  :  — 

SYRACUSE,  Oct.  1,  1878. 

MY  DEAR  SIR, —  Till  1860,  I  knew  nothing  of  the  religious 
convictions  or  relations  of  Judge  Curtis,  except  that  he  was  a 
regular  and  reverent  worshipper  at  the  King's  Chapel.  In  that 
year,  Emmanuel  Parish  was  organized.  I  had  just  passed  into  the 
Episcopal  Church,  and  it  was  understood  that  I  should  become  its 
rector  on  being  ordained  Priest,  as  I  did.  The  Judge  and  his  wife 
appeared  in  the  congregation,  with  the  children,  except  Minnie, 
who,  you  know,  continued  a  Unitarian.  Bessie  had  been  married. 
If  her  connection  with  the  "  Advent "  had  any  bearing,  direct  or 
indirect,  on  her  father's  change  of  views,  I  never  knew  it,  either 
from  him  or  otherwise.  His  coming  to  "  Emmanuel "  at  the  time 
struck  me  as  a  sign  that  he  was  in  earnest,  because  the  service  was 
temporarily  held  in  a  hall,  and  his  preference  was  known  to  be  for 
what  is  settled  and  stable. 

At  an  early  day,  he  came  to  me  to  say  that  he  desired  to  come 
to  the  Holy  Communion  with  Mrs.  Curtis  ;  that  I  might  not  un 
naturally  imagine  he  came  as  a  Unitarian,  but  that  he  did  not; 
that  thought  and  inquiry  had  led  him  to  accept  the  doctrine  of 
the  Trinity  and  the  system  of  the  Church. 

Confirmation  was  mentioned  as  a  Church  ordinance.  He  said 
that  his  education  and  habits  had  not  prepared  him  to  conform  to 
that  rite,  and  that  it  did  not  seem  to  him  then  to  be  necessary  or  a 
duty ;  but  that  he  should  not  in  any  case  take  the  sacrament  of  the 
Supper  without  my  express  consent.  My  reply  to  him  was  what 
it  has  usually  been  in  like  cases ;  namely,  that  I  thought  he  had  a 
right  to  come,  under  the  language  of  invitation  in  the  Prayer- Book, 
till  he  should  feel  disposed  to  take  the  more  definite  step,  and  that 
he  would  be  welcome.  From  that  time  he  was  a  regular  com 
municant. 

In  this  conversation,  or  in  some  other,  he  mentioned  that  of  the 


324  MEMOIR    OF   BENJAMIN   ROBBINS    CURTIS.  [1860. 

sermons  he  had  heard  me  preach  formerly  at  King's  Chapel,  where 
I  used  to  officiate  a  good  deal  when  I  was  preacher  to  the  Univer 
sity  at  Cambridge  (there  being  no  pastor),  he  had  been  most 
interested  in  those  which  indicated  the  movement  of  my  mind  away 
from  Unitarianism,  towards  what  are  called  in  New  England 
"  Orthodox  "  or  *'  Evangelical "  opinions,  but  which  I  rather  desig 
nate  as  Scriptural  and  catholic  beliefs.  You  know  what  he  meant. 
I  cannot  recall  his  words,  —  always  so  clear  and  precise  on  every 
subject.  But  neither  you  nor  I  would  be  likely  to  suppose  his 
conclusions  were  the  result  of  any  thing  but  independent  processes 
of  his  own  mind. 

After  that,  I  do  not  think  he  referred  to  those  processes.  He 
implied  that  they  were  deliberate  and  final.  In  his  great  kind 
ness  and  that  of  his  family,  I  was  often  a  guest  at  his  house,  — 
sometimes  to  render  the  offices  of  the  Church.  .  .  .  The  Judge 
always  conversed  on  theological  and  religious  subjects  naturally, 
moderately,  and  devoutly.  He  recognized  himself  freely  as  a 
Churchman.  He  took  an  interest  in  parish  affairs,  and  I  think 
was  a  vestry-man.  His  name  being  brought  forward  in  the 
Massachusetts  Convention,  he  was  elected  a  Deputy  to  the  Gen 
eral  Convention  held  in  New  York  in  1868,  and  I  remember  his 
saying  that  he  had  never  been  more  impressed  by  any  public  body 
of  men. 

Whether  I  was  correctly  informed  when  I  was  told  that  it  was 
his  practice  to  make  some  devout  daily  observance  of  worship  in 
his  family,  you  doubtless  can  tell  better  than  I.1 

If  I  have  said  more  or  less  than  you  desired.  I  hope  you  will 
pardon  it.  ... 

Very  sincerely  yours, 

F.  D.  HUNTINGTON. 

P.  S.  —  It  would  be  mortifying  if  any  thing  I  have  written 
should  appear  ungracious  to  my  old  and  life-long  friends  among 
the  Unitarians,  to  whose  learning,  character,  and  good-will  I  am 
greatly  indebted,  and  whom  I  never  loved  and  honored  more  than 
now. 

It  is  not  to  be  inferred,  from  this  change  of  religious  be 
lief,  that  there  was  any  change  in  his  religious  life.  The 

1  The  Bishop  was  correctly  informed  on  this  point. 


1860.J  RELIGIOUS    CHARACTER.  325 

substratum  ol  bis  religious  character  remained  always  the 
same,  from  bis  youth  onwards.  I  cannot  adduce  better 
testimony  of  this,  or  give  a  better  idea  of  what  bis  religious 
character  was,  than  by  quoting  from  the  Memoir  read 
before  the  Massachusetts  Historical  Society  by  his  friend 
and  classmate,  the  Rev.  Dr.  Robbins,  who  has  himself 
always  been  a  Unitarian  :  — 

Any  sketch  of  Mr.  Curtis  would  be  imperfect  which  should  fail 
to  notice  and  give  prominence  to  his  religious  character.  .  .  .  He 
was  ready  on  all  proper  occasions  to  express  his  belief  in  Divine 
revelation,  and  to  defend  it  against  the  objections  of  the  sceptical. 
In  commenting  upon  the  proposed  prayer  test,  he  said  that  every 
thoughtful  man  might  find  a  test  in  his  own  experience,  and  that  it 
was  enough  for  him  that  the  Saviour  was  himself  accustomed  to 
pray,  and  assured  us  that  prayer  had  its  answer.  He  once  remarked 
that  communion  between  man  and  his  Maker  seemed  to  him  as 
reasonable  arid  real  as  that  between  one  human  being  and  another. 
In  conversing  with  him  on  these  subjects,  I  have  been  struck  with 
the  deep  feeling  and  positiveness  of  conviction  with  which  he 
spoke.  I  have  heard  him  say  that  theology  was  one  of  his  favorite 
studies  outside  of  his  profession,  and  that  he  had  weighed  and 
examined  the  evidences  of  Christianity  with  a  lawyer's  scrutiny, 
and  found  them  to  be  sufficient  and  irrefutable.  But  his  own  belief 
did  not  rest  upon  them  as  much  as  upon  the  necessities  of  his  own 
heart,  the  study  of  his  own  nature,  the  lessons  of  experience,  and 
the  impression  made  upon  his  mind  by  the  Holy  Scriptures, 
especially  the  New  Testament.  Many  reminiscences  of  acts  and 
sayings  illustrative  of  this  part  of  his  character  —  the  highest  and 
best  part  of  any  character,  and  that  which  always  asserts  its 
supremacy  in  our  regard  when  the  life  of  a  friend  is  ended  —  are 
cherished  among  his  confidential  associates.  They  are  attached  to 
every  period  of  his  life.  Some  of  them  are  reserved  for  the  com 
munion  of  private  friendship ;  but  to  others  the  utmost  delicacy  of 
feeling  would  not  deny  the  permanent  record  of  which  they  are  not 
unworthy.  The  following  was  related  by  a  classmate,1  at  the  annual 
dinner  of  the  Class  of  1829,  after  Mr.  Curtis's  death :  —  "  Among 
several  incidents  of  a  journey  on  horseback  with  Curtis  to  Niagara 

1  Mr.  G.  W.  Phillips. 


326  MEMOIR    OF   BENJAMIN   BOBBINS   CUKTIS.  [1860. 

Falls,  during  one  of  our  college  vacations,  I  recall  an  interesting 
one  illustrative  of  his  religious  character.  One  Sunday  night, 
when  we  had  lain  by,  as  our  practice  was,  he  asked  me  if  I  would 
hear  him  read  a  short  prayer ;  and  taking  out  a  pocket  prayer- 
book  he  read,  in  that  singularly  charming  voice  which  remained  the 
same  through  life,  some  appropriate  prayer.  We  had  very  punc 
tiliously  avoided  saddle-bags,  carrying  instead  the  small,  round 
military  valise,  which  held  little  more  than  a  single  change  of 
clothes ;  but  he  had  remembered,  and  contrived  to  find  room  in  his, 
for  the  little  volume." 

On  one  occasion,  while  he  wras  practising  law  at  Northfield, 
Sheriff  -  — ,  observing  the  Bible  open  before  him,  playfully 
remarked  that  that  was  a  strange  book  for  a  lawyer  to  be  seen 
reading  in  his  office.  Mr.  Curtis  replied,  "  Then  I  pity  the  law 
yers  ;  for  those  who  are  ignorant  of  the  principles  inculcated  in 
that  book  cannot  be  thoroughly  furnished  for  the  duties  of  their 
profession." 

In  a  letter  to  a  clerical  friend,  who  had  congratulated  him  on  his 
appointment  to  the  Supreme  Bench  of  the  United  States,  he 
expresses  with  profound  humility  his  sense  of  obligation  to  the 
Divine  Power  for  any  success  which  he  had  achieved,  without 
invoking  which  he  had  never  taken  any  important  step,  and  would 
not  presume  to  undertake  the  responsible  office  to  which  he  had 
been  appointed. 

Some  time  after  he  had  retired  to  private  life,  he  remarked  con 
fidentially  to  an  intimate  friend,  that  he  had  never  taken  his  seat 
on  the  bench,  or  risen  to  charge  a  jury,  until  he  had  first  offered  a 
silent  prayer  for  wisdom  and  guidance. 


I860.]  THKEATENINGS   OF   SECESSION.  327 


CHAPTER  XII. 

1860-1866. 

Threatenings  of  Secession.  —  Efforts  to  produce  a  Conciliatory  Spirit  in 
Massachusetts.  —  Civil  War.  —  President  Lincoln's  Proclamations  of  Sep 
tember,  1862.  —  Pamphlet  on  Executive  Power.  —  Curious  Interview  with 
Mr.  Stanton.  —  Death  of  a  Mother.  —  Appointed  Umpire  under  a  Treaty 
between  Great  Britain  and  the  United  States.  —  Opinions  given  at  the 
Bar. 

PUBLIC  events  require  to  be  noticed  in  this  work  so  far 
only  as  a  reference  to  them  may  be  needful  to  describe  the 
efforts  of  Judge  Curtis  to  influence  the  action  of  his  fellow- 
citizens  in  accordance  with  the  rule  of  his  life  which  I 
have  already  explained.  In  the  period  on  which  I  now 
enter,  he  felt  the  demand  which  the  gravity  of  the  crisis 
made  upon  him,  in  proportion  to  the  dangers  which  im 
pended  over  his  country.  It  has  been  seen,  that,  during  an 
earlier  part  of  his  life,  although  occupying  none  but  a  private 
station,  and  with  no  forwardness  to  take  part  in  political 
affairs,  he  did  not  refuse  to  make  the  efforts  that  became 
him,  to  produce  a  sound  public  sentiment  on  important 
occasions.  He  had  since  filled  one  of  the  highest  judicial 
offices  in  the  country,  in  which  he  had  acquired  a  greater 
amount  of  reputation  than  any  other  man  had  gained  in  six 
years  of  such  public  service.  He  was  now  again  a  private 
citizen  ;  but  he  was  one  to  whom  the  thoughtful  and  con 
siderate  men  of  his  own  community,  and  a  much  wider 
public,  looked  for  the  best  and  most  seasonable  counsels,  — 
counsels  which  were  all  the  more  deserving  of  weight,  from 
the  fact  that  he  was  known  to  have  no  political  object  what 
ever  for  himself,  or  for  any  party.  The  class  of  persons 


328  MEMOIR   OF    BENJAMIN   BOBBINS   CURTIS.  [I860. 

who,  in  any  serious  junctures  of  public  affairs,  were  likely 
to  urge  him  to  act  upon  them,  were  undoubtedly  a  minority. 
But  they  were  those  whose  wishes  he  could  not  disregard, 
even  if  he  required  prompting.  In  truth,  however,  he  re 
quired  no  urging,  when  his  own  patriotism  and  his  own 
judgment  taught  him  that  he  had  a  public  duty  to  fulfil. 
He  was  then  willing  to  become  such  a  leader  of  opinion  as 
a  wise  and  disinterested  man  may  be,  who  utters  his  own 
earnest  convictions,  and  leaves  them  to  do  what  they  may 
for  the  public  good. 

Mr.  Lincoln  was  duly  elected  President  of  the  United 
States,  in  November,  1860,  without  receiving  the  Electoral 
vote  of  a  single  slave-holding  State.  With  the  reasonable 
ness  or  unreasonableness  of  the  apprehensions  which  the 
circumstances  attending  his  election  awakened  in  the  minds 
of  the  Southern  people,  I  have  here  no  concern.  Many 
will  remember  the  excitement  which  followed  throughout 
that  section  of  the  country ;  and  will  recognize  the  fact, 
that,  through  all  that  region,  there  was  a  party,  more  or  less 
strong,  who  struggled  manfully  to  retain  their  States  in 
the  Union.  If  there  was  any  thing  that  the  people  of  a 
Northern  State  could  do,  without  any  sacrifice  of  principle 
or  of  any  important  interest,  which  would  at  that  crisis 
strengthen  the  hands  of  the  Union  men  of  the  South,  it 
was  certainly  fit  and  proper  that  it  should  be  done.  Above 
all,  if  there  was  any  just  complaint  that  the  whole  people 
of  the  South  could  make  of  any  Northern  State,  it  was  a 
clear  duty  resting  upon  such  State  to  remove  it. 

There  had  long  been  upon  the  statute-book  of  Massachu 
setts  a  law,  known  as  the  Personal  Liberty  Law,  that  was 
believed  by  many  competent  judges  to  be  in  open  conflict 
with  a  provision  of  the  Constitution  of  the  United  States 
about  which  the  people  of  the  South  were  peculiarly  sensi 
tive  The  repeal  of  this  law  had  been  several  times  pro 
posed  in  the  Legislature,  and  several  times  refused.  It 
seemed  as  if  the  people  of  the  State  ought  to  be  willing  to 


I860.]      ADDRESS  TO  THE  PEOPLE  OF  MASSACHUSETTS.      329 

be  instructed,  in  their  obligations  to  the  national  Constitu 
tion,  by  their  own  citizens  who  were  most  competent  to 
enlighten  them.  It  was  now  thought  to  be  wise,  that  a 
special  effort  should  be  made  to  cause  this  law  to  be  re 
pealed,  before  the  madness  of  Secession  had  extended  so 
far  in  the  South  as  to  make  a  civil  war  necessary  for  the 
supremacy  of  the  Constitution  and  the  preservation  of  the 
Union.  Judge  Curtis  was  requested  to  prepare  an  Address 
to  the  People  of  the  State  on  this  subject,  to  be  signed  by 
a  select  body  of  men  of  known  probity,  disinterestedness, 
and  weight  of  character.  It  was  written  and  issued  in  the 
middle  of  December,  1860.  The  first  signature  that  it  bore 
was  that  of  the  great  magistrate  who  had  been  Chief  Jus 
tice  of  the  State  for  a  period  of  more  than  thirty  years,  but 
who  had  recently  resigned  that  office. 

ADDRESS. 

To  THE  CITIZENS  OF  MASSACHUSETTS:  — 

The  undersigned  are  moved  by  an  imperative  sense  of  duty  to 
address  their  fellow-citizens  of  the  State  of  Massachusetts  concern 
ing  the  portentous  condition  of  our  public  affairs. 

We  are  private  citizens,  of  different  political  parties,  neither 
holding  nor  desiring  any  public  employment,  having  no  interest  in 
the  subject  which  is  not  common  to  all,  and  being  impelled  by  no 
motive  save  the  love  of  our  country  and  our  sense  of  responsibility 
to  God  for  the  preservation  and  transmission  of  the  priceless  bless 
ings  of  civil  liberty  and  public  order  which  his  providence  has 
bestowed  upon  us.  Many  of  us  have  heretofore  held  public  em 
ployments,  arid  we  say,  not  in  a  spirit  of  boasting,  but  because  the 
occasion  calls  on  us  to  say  it,  that  the  people  have  seen  we  have 
not  been  unfaithful  to  their  trusts. 

For  our  honest  and  profound  convictions,  for  the  cause  of  truth 
and  right,  for  the  sake  of  your  own  duties  and  welfare,  we  ask  you 
to  hear  us. 

A  large  and  important  part  of  our  common  country  is  excited 
and  alarmed.  We  deceive  ourselves  if  we  suppose  this  excitement 
and  alarm  are  riot  real,  deep,  and  general  throughout  fifteen  States, 


330  MEMOIR   OF  BENJAMIN  BOBBINS   CUKTIS.  [1860 

which  have  been  united  to  us  by  the  closest  ties  which  ever  did,  or 
in  the  nature  of  human  affairs  ever  can,  connect  different  political 
communities. 

The  foundations  of  our  government  are  shaken,  and,  unless  the 
work  of  destruction  shall  be  stayed,  we  may  soon  see  that  great 
union,  our  honor  and  safety  abroad  and  at  home,  broken  into  weak, 
discordant,  and  shattered  fragments;  and  that  people,  who  have 
dwelt  under  its  protection  in  unexampled  peace  and  prosperity, 
shedding  fraternal  blood  in  civil  war. 

At  such  a  time,  it  is  a  great  and  solemn  duty  of  the  people  of 
every  State,  to  consider  well  whether  any  part  of  the  wrong  which 
has  produced  this  condition  of  our  affairs  can  justly  be  laid  to  its 
charge  ;  and,  if  any  such  should  be  found,  every  consideration  of 
duty  and  interest  demands  that  such  wrong  should  be  promptly 
repaired. 

No  specious  fallacies,  no  blind  resentments,  no  loud  recrimina 
tions,  no  false  pride,  should  be  allowed  to  keep  us  in  any  wrong 
which  can  form  even  a  small  part  of  the  causes  which  threaten  a 
great  people  with  ruin. 

Our  first  duty  is  with  ourselves.  It  can  be  performed  only  by 
a  just,  candid,  and  manly  examination  of  our  own  conduct. 

When  we  shall  have  done  altogether  right  ourselves,  we  can 
firmly  demand  all  that  is  due  from  others,  and  calmly  abide  what 
ever  consequences  may  ensue  from  insisting  on  that  demand. 

Fellow-citizens  of  Massachusetts,  we  are  forced  by  these  con 
siderations  solemnly  to  declare,  that  we  believe  the  State  of 
Massachusetts  has  violated  our  great  national  compact,  by  laws 
now  on  her  statute-book  which  are  in  conflict  with  the  Constitu 
tion  and  laws  of  the  United  States. 

The  Federal  government,  like  the  government  of  each  State, 
extends  over  the  territory  of  each  State  arid  over  all  persons 
within  its  limits.  Each  of  these  governments  is  sovereign  and 
supreme  within  its  own  constitutional  sphere  of  action,  and  entitled 
to  the  implicit  obedience  of  the  people  to  its  laws,  and  to  its  judi 
cial  and  executive  officers  appointed  to  apply  and  enforce  them. 
It  is  plain,  that,  if  one  of  these  governments  may  command  its 
officers  arid  its  citizens  to  do  an  act,  the  other  cannot  command 
them  to  abstain  from  doing  it,  or  require  them  to  do  something 
which  prevents  or  obstructs  its  execution.  It  is  an  inevitable  con 
sequence,  that,  when  either  persons  or  property  have  been  taken 


I860.]     ADDRESS  TO  THE  PEOPLE  OF  MASSACHUSETTS.      331 

into  the  custody  of  the  law  of  one  of  these  governments,  and  its 
executive  officers  are  required  by  its  laws  to  preserve  that  custody, 
then  the  other  government  cannot  require  its  officers  and  citizens 
in  any  manner  to  interfere  therewith.  Such  interference  would  be 
a  plain  departure  from  its  constitutional  powers ;  and  laws  com 
manding  it  are  laws  commanding  civil  war. 

Yet  it  is  nevertheless  the  fact,  that  if  a  fugitive  from  service, 
whom  the  Constitution  and  laws  of  the  United  States  require  to 
be  delivered  up,  be  in  the  custody  of  a  Marshal  of  the  United 
States,  who  is  commanded  by  the  laws  of  the  United  States  to 
retain  that  custody,  the  laws  of  Massachusetts  require  every  judge 
of  its  Supreme  Court,  its  Superior,  Probate,  or  Police  Court,  (and 
any  justice  of  the  peace  in  some  contingencies,)  to  issue  a  writ 
requiring  the  Marshal  of  the  United  States,  having  such  custody, 
to  bring  the  fugitive  before  a  State  tribunal,  to  subject  him  to  the 
control  of  such  tribunal,  and  to  relinquish  his  custody  upon  its 
order.  And  having  thus  taken  the  fugitive  from  the  custody  of 
the  law  of  the  United  States,  the  State  tribunal  is  to  proceed  to 
a  trial  of  the  matters  in  issue,  with  forms  and  principles  of  its 
own,  which  it  is  believed  have  never  been  applied  to  any  other 
case,  which  are  wholly  inconsistent  with  the  laws  of  the  United 
States,  and  in  open  defiance  of  their  authority.  And,  as  if  the 
execution  of  these  laws  could  not  be  left  to  the  ordinary  instru 
mentalities,  deemed  sufficient  for  the  protection  of  the  lives,  per 
sons,  and  property  of  our  citizens,  and  in  preparation,  as  it  would 
seem,  for  an  inevitable  and  perilous  contest,  special  commissioners 
are  required  to  be  appointed  in  each  county  of  the  Commonwealth, 
and  the  treasury  of  the  Commonwealth  is  subjected  to  their  un 
limited  control,  for  the  purpose  of  provoking  the  conflict  and 
pressing  it  onward  to  its  final  and  inevitable  issue  of  physical 
force. 

Besides  the  laws  already  referred  to,  there  are  other  provisions, 
which  are  manifestly  designed  to  surround  the  performance  of  our 
constitutional  duty  of  surrendering  fugitives  from  service  with  such 
obstacles  as  must  prevent  its  performance,  even  though,  by  so 
doing,  our  own  public  peace  should  be  left  at  the  mercy  of  a 
lawless  mob. 

We  hold  it  to  be  plain,  that  a  State  has  not  the  constitutional 
power  to  subject  to  severe  and  ignominious  punishment  persons 
who,  by  mistake  of  facts,  or  misapprehension  of  law,  and  without 


332  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1860. 

any  corrupt  or  wicked  intent,  make  a  claim  under  the  laws  and 
before  the  authorities  of  the  United  States.  If  such  a  power 
existed,  every  law  of  the  United  States  could  be  rendered  inop 
erative  by  State  legislation.  For  who  would  demand  any  right 
under  a  law  of  the  United  States,  if  the  penalty  of  an  innocent 
failure  to  prove  his  case,  which  may  proceed  from  merely  acci 
dental  causes,  should  subject  him  to  a  fine  of  five  thousand  dollars, 
and  imprisonment  in  the  State  prison  for  five  years  ?  Yet  such  is 
one  of  the  laws  now  on  our  statute-book. 

The  volunteer  militia  are  prohibited  from  acting  in  any  manner 
in  the  rendition  of  a  person  adjudged  to  be  a  fugitive  from  service. 
The  volunteer  militia  is  the  only  arm  on  which  the  municipal 
magistrates  of  our  cities  and  towns  can  rely  to  quell  organized  and 
dangerous  riots.  Every  one  of  its  members  is  a  member  of  the 
militia  of  the  United  States,  and  they  are  armed  at  the  expense 
and  under  the  authority  of  the  United  States,  expressly  conferred 
by  the  Constitution.  Yet  this  law  declares,  that  the  arms  of  the 
United  States,  in  the  hands  of  citizens  of  the  United  States,  who 
are  a  part  of  the  militia  of  the  United  States,  shall  not  be  used  by 
them  to  protect  officers  of  the  law  of  the  United  States  from  law 
less  violence  in  the  streets  of  a  city,  whose  peace  the  Common 
wealth  is  bound  to  preserve. 

Fellow-citizens,  is  it  consistent  with  the  duty  we  owe  to  our 
common  country,  to  our  State,  and  to  ourselves,  that  such  laws 
should  be  permitted  longer  to  exist  ? 

We  know  it  is  doubted  by  some  whether  the  present  is  an  op 
portune  moment  to  abrogate  them.  It  is  said,  We  grant  these 
laws  are  wrong,  but  will  you  repeal  them  under  a  threat  ?  We  an 
swer  no.  We  would  do  nothing  under  a  threat.  We  would  repeal 
them  under  our  own  love  of  right ;  under  our  oiun  sense  of  the  sa- 
credness  of  compacts  ;  under  our  own  conviction  of  the  inestimable 
importance  of  social  order  and  domestic  peace  ;  under  our  feeling  of 
responsibility  to  the  memory  of  our  fathers  and  the  welfare  of  our 
children,  and  not  wider  any  threat.  We  would  not  be  prevented 
from  repealing  them  by  any  conduct  of  others,  if  such  repeal  were 
in  accordance  with  our  own  sense  of  right.  He  who  refuses  to  do 
a  right  thing  merely  because  he  is  threatened  with  evil  conse 
quences,  acts  in  subjection  to  the  threat  ;  he  is  controlled  by  it ; 
his  false  pride  may  enable  him  to  disregard  the  threat ;  but  he 
lacks  courage  to  despise  the  wrong  estimate  of  his  own  conduct, 


I860.]      ADDRESS  TO  THE  PEOPLE  OF  MASSACHUSETTS.      333 

which  conduct  he  knows  would  spring  only  from  his  love  of  duty. 
If  every  right-minded  man  must  admit  that  he  ought  to  govern  his 
own  conduct  by  these  principles,  are  they  inapplicable  to  the  con 
duct  of  a  great  and  populous  State  ?  On  what  ground  can  it  be 
maintained  that  hundreds  of  thousands  of  innocent  citizens  are  to 
be  subjected  to  suffering,  because  the  false  pride  of  their  rulers 
refuses  to  do  right  ?  Mankind  have  been  afflicted  long  enough 
and  grievously  enough  by  commotions  and  strifes  and  wars  spring 
ing  from  such  causes.  We  had  hoped  that  the  nature  of  our 
government  would  protect  us  from  swelling  the  great  sum  of  hu 
man  misery  produced  by  the  evil  passions  of  rulers.  We  had 
hoped  that,  inasmuch  as  the  masses  of  the  people  can  have  no 
interest  but  to  do  right,  they  would  have  the  discernment  to  per 
ceive,  and  the  manliness  to  do  it ;  and  would  be  too  calm,  too  wise, 
too  magnanimous  intentionally  to  persevere  in  any  wrong ;  and  we 
hope  so  still. 

But  what  is  meant  by  the  exhortation  not  to  repeal  these  laws 
under  a  threat?  Who  threatens  us  if  they  should  not  be  re 
pealed? 

Whatever  may  have  been  true  in  the  past,  whatever  faults  of 
speech  and  action  may  have  been  committed  on  the  one  side  or  on 
the  other,  we  firmly  believe  that  the  men  from  whom  the  worst 
consequences  to  our  country  and  ourselves  are  likely  to  proceed 
have  no  wish  that  these  laws  should  be  repealed,  and  no  disposition 
to  use  any  threats  in  reference  to  them.  On  the  contrary,  they 
desire  to  have  them  stand  as  conspicuous  and  palpable  breaches  of 
the  national  compact  by  ourselves,  and  as  affording  justification  to 
themselves,  to  the  world,  and  to  posterity  for  the  destruction  of  the 
most  perfect  and  prosperous  government  which  the  providence  of 
God  has  ever  permitted  the  wisdom  of  man  to  devise.  How  far 
these  acts  of  ours  are  from  affording  any  justification  for  the 
enormous  wrong  such  men  contemplate  ;  how  precipitate,  rash,  and 
unnecessary  are  the  violent  and  destructive  measures  they  are 
seeking  to  pursue,  we  know  but  too  well.  But  we  know  equally 
well,  that  there  are  other  men,  living  among  these  last,  and  con 
nected  with  them  as  members  of  the  same  society,  who  are 
struggling  to  preserve  our  government,  who  are  seeking  for  other 
remedies  than  revolution  and  civil  war,  who  still  love  their  whole 
country,  however  bounded,  and  who  would  not  see  the  glory  of 
our  fathers  sink  into  the  darkness  of  their  children's  shame  ;  and 


834  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1860. 

we  know  that  these  patriotic,  wise,  and  courageous  men  are  checked 
and  weakened  in  their  efforts  to  save  the  country  by  our  persist 
ence  in  our  wrong.  They  threaten  no  one ;  but  their  labors  and 
their  sacrifices  for  our  common  country  call  on  us,  in  tones  more 
eloquent  than  any  words,  to  do  our  duty,  and  not  to  obstruct  them 
in  doing  theirs. 

We  have  heard  it  suggested,  also,  that  this  is  not  the  time  to 
repeal  these  laws,  because,  in  any  future  attempt  at  a  compromise 
between  the  North  and  the  South,  we  should  not  have  them  to 
surrender  on  our  part.  But  we  cannot  listen  to  those  who  counsel 
us  to  make  merchandise  of  our  own  honor.  Shall  we  grasp  what 
does  not  belong  to  us,  and,  when  satisfied  it  is  not  ours,  say,  we 
will  keep  it  wherewith  to  make  a  bargain  ?  And  a  bargain  with 
whom  ?  With  strangers,  —  with  aliens  in  blood  and  speech,  in 
interests  and  destiny  ?  Not  so.  We  all  have  but  one  country, 
one  welfare,  one  destiny ;  whether  that  destiny  be  to  climb  by  the 
upward  path  of  peace  and  union  to  the  height  where  we  should  be 
the  envy  and  delight  of  the  nations,  or  to  plunge  into  the  gulf  of 
civil  discord,  and  find  a  dishonored  grave.  No  serious  wound  can 
be  inflicted  anywhere  on  our  body  politic,  without  making  the 
whole  head  sick  and  the  whole  heart  faint.  And  he  who  should 
approach  an  attempt  to  cure  our  disorders,  not  with  a  spirit  of 
moderation,  of  justice,  of  kindness  and  fraternal  regard,  but  with 
a  disposition  to  seem  to  surrender  what  is  not  our  own,  that  we 
may  keep  what  we  have  not  the  courage  otherwise  to  claim,  has 
but  a  poor  kind  of  cunning  and  very  little  manhood. 

We  do  not  believe  that  such  is  the  temper  of  the  people  of 
Massachusetts. 

We  know  they  have  in  time  past  had  great  provocations.  And 
we  firmly  believe  that,  if  they  have  so  far  yielded  to  them  as  to 
allow  their  resentment  to  press  too  strongly  on  their  judgment,  it 
is  not  because  they  do  not  love  the  right,  or  because  they  feel  any 
indisposition  to  discharge  honestly  and  generously  every  constitu 
tional  obligation.  The  entire  history  of  our  State,  back  to  its 
earliest  germ  on  the  rock  of  Plymouth,  forbids  us  to  doubt  the 
integrity,  the  magnanimity,  the  intelligence,  or  the  patriotism  of 
our  fellow-citizens.  To  these  great  qualities  we  earnestly  appeal. 
We  beseerh  you  to  consider  carefully  this  momentous  subject ;  to 
act  upon  it  justly,  firmly,  wisely,  as  becomes  men  to  whose  care 
so  great  privileges  have  been  intrusted,  and  who  are  accountable  to 


I860.]      ADDRESS  TO  THE  PEOPLE  OF  MASSACHUSETTS.      335 


posterity,  to  the  world,  and  to  our  Creator  for  their  transmission 
unimpaired  to  our  children.  Let  those  whom  you  have  delegated 
to  represent  you  know  your  determination.  Cause  them  to  obey 
it.  Let  not  the  public  servants  be  above  the  people,  who  are  their 
masters.  See  that  they  do  right.1 

No  practical  effect  followed  this  appeal.  It  served  only 
to  show  how  the  counsels  of  wise  men  may  be  disregarded 
in  times  of  popular  excitement,  and  to  certify  to  the  people 
of  the  South  that  the  feelings  which  then  swayed  the  great 
majority  of  the  people  of  Massachusetts  were  not  shared  by 
a  select  and  important  body  of  her  best  citizens.  It  is,  of 
course,  problematical  whether  the  repeal  of  this  law  and 
of  similar  laws  of  some  of  the  other  Northern  States,  would 
have  had  any  considerable  tendency  to  arrest  the  progress 
of  Secession ;  but  it  is  not  to  be  doubted  that  the  duty  of 
removing  this  cause  of  complaint  was  not  to  be  measured 
by  any  speculative  belief  that  it  would  be  a  useless  act. 
Nor  was  the  refusal  to  do  that  act  without  an  unfortunate 
influence  in  more  than  one  of  the  Southern  States,  a  portion 
of  whose  people  were  looking  toward  the  North  for  some 
tangible  signs  of  a  conciliatory  spirit,  to  which  they  could 

1  The  Address  bore  the  following  signatures  :  — 


LEMUEL  SHAW,  Boston. 
BENJAMIN  R.  CURTIS,  Boston. 
JOEL  PARKER,  Cambridge. 
JOSEPH  GRINNELL,  New  Bedford. 
ISAAC  DAVIS,  Worcester. 
HENRY  J.  GARDNER,  Boston. 
GEORGE  PUTNAM,  Roxbury. 
JAMES  SAVAGE,  Boston. 
GEORGE  PEABODY,  Salem. 
HOMER  BARTLETT,  Lowell. 
GEORGE  TICKNOR,  Boston. 
JARED  SPARKS,  Cambridge. 
ALBERT  FEARING,  Boston. 
HENRY  W.  CLAPP,  Greenfield. 
NATHANIEL  WOOD,  Fitchburg. 
CHARLES  THEO.  RUSSELL,  Cambridge 
GEORGE  T.  RICE,  Worcester. 
EDWARD  DICKINSON,  Amherst. 
LEVI  LINCOLN,  Worcester. 
WILLIAM  BAYLIES,  Bridgewater. 
SIDNEY  BARTLETT,  Boston. 


JOHN  H.  CLIFFORD,  New  Bedford. 
EMORY  WASHBURN,  Cambridge. 
JAMES  JACKSON,  Boston. 
THEOPHILUS  PARSONS,  Cambridge. 
JAMES  WALKER,  Cambridge. 
EDWARD  A.  NEWTON,  Pittsfield. 
CHARLES  B  GOODRICH,  Boston. 
J.  G.  ABBOTT,  Lowell. 
WIN  SLOW  WARREN,  Plymouth. 
JAMES  M.  BEEBE,  Boston. 
LINUS  CHILD,  Lowell. 
JOHN  AIKEN,  Andover. 
HENRY  W.  BISHOP,  Lenox. 
WILLIAM  G  BATES,  Westfield. 
SAMUEL  L.  CROCKER,  Tuunton. 
WILLIAM  C  PLUNKETT,  South  Adams. 
DAVID  AIKEN,  Greenfield. 
HENRY  W.  PAINE,  Cambridge. 
ISAAC  L.  HEDGE,  Plymouth. 
CHAS.  S.  STORROW,  Lawrence. 
INCREASE  SUMNER,  Great  Barrington. 


336  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1861. 

point  in  their  controversies  with  those  who  were  seeking  to 
carry  their  States  out  of  the  Union. 

Before   the  month   of  February,  1861,  had  arrived,  the 
people  of  six  of   the  Southern   States  had   adopted   Ordi 
nances  of  Secession,  which,  according  to  their  theory  of  the 
Constitution,  had  severed  them  from  the  Union,  and  dis 
solved  their  obligations  to  obey  the  laws  of  the  United  States. 
Another  group  of  the  slave-holding  States  —  from  their  geo 
graphical   position  between   the   free   States  of  the  North 
and  West  and  the   seceded   States    of  the  extreme  South 
known  at  this  time  as  the  Border  States  —  hung  trembling 
in  the  balance.     These  were    Maryland,   Virginia,    North 
Carolina,  Kentucky,  Tennessee,  and  Missouri.     It  seemed  to 
one  of  the  last  of  a  race  of  statesmen  of  an  earlier  period,  — 
a  man  who  had  been  bred  in  the   best   school  of   constitu 
tional  interpretation,  who  regarded  the  supposed  right  of 
secession  as  merely  mythical,  but  who  knew  the  strength 
of  popular  delusions  when  stimulated  by  popular  fears,  — 
that  the  time  had  come  for  a  union  of  all  sober  men  upon 
some  conciliatory  plan,  which  would  arrest  the  progress  of 
the    revolution,  and  save   the    Border    States   from   being 
ingulfed  in  it.     This  was  John  J.  Crittenden,  a  Senator  in 
Congress  from  Kentucky.     If  he  had  not  the  force  of  char 
acter  and  the  commanding  influence  of  his  great  friend  and 
compatriot,  Henry  Clay,  who  had  twice  before  successfully 
intervened  between  an  excited  North  and  an  excited  South, 
he  had,  from  his  venerable  years,  his  known  patriotism,  his 
long  experience  in  the  service  of  his  country,  his  fairness 
of  mind,  and  his  moderation  of  temper,  that  which  should 
have  caused  him,  and  to  a  considerable  extent   did    cause 
him,  to  be  regarded  as  a  fit  mediator  in  this  dangerous  con 
flict  of  ideas  and  passions,  of  opposing  sectional  interests 
and  hostile  claims.     Mr.  Crittenden  proposed  in  the  Senate 
a  comprehensive  plan  of  settlement,  by  which  he  hoped  to 
effect  a  compromise  between  the  North  and  the  South,  which 
would  have  the  effect  of  retaining  the  Border  States  in  the 


3861.1  SPEECH   IN   FANEUIL   HALL.  337 

Union.  If  it  had  received  the  assent  of  those  who  were 
supposed  to  represent  and  act  for  the  Administration  that 
was  about  to  come  into  power,  there  can  be  no  rational 
doubt  that  Virginia,  at  least,  would  not  have  adopted  an 
Ordinance  of  Secession,  and  that  it  would  not  have  been 
necessary  to  save  the  other  Border  States  by  armed  occu 
pation. 

The  details  of  Mr.  Crittenden's  plan,  and  the  causes 
which  prevented  it  from  receiving  the  assent  of  all  parties, 
do  not  need  to  be  considered  here.  For  a  time,  it  arrested 
the  attention  of  the  country  ;  and  it  was  while  there  were 
hopes  that  it  might  take  effect,  or  might  lead  to  measures 
that  would  prevent  the  further  spread  of  the  revolution 
which  had  been  begun  in  the  remote  South,  that  a  great 
popular  meeting  was  held  in  Faneuil  Hall,  on  the  5th  of 
February,  called  by  and  composed  of  those  who  desired  to 
sustain  Mr.  Crittenden's  efforts.  It  was  not  a  meeting  of 
citizens  of  Boston  alone,  but  it  was  attended  by  prominent 
men  from  all  parts  of  the  State,  who  filled  the  historical  build 
ing  to  its  utmost  capacity.  At  this  meeting,  Judge  Curtis 
made  the  following  speech  :  — 

FELLOW-CITIZENS,  —  I  suppose  every  man  in  this  assembly 
has  come  into  it  with  the  conviction  weighing  heavily  on  his 
heart  that  our  country  is  in  imminent  peril.  I  believe  there  is 
not  one  man  here  who  is  not  anxiously  ready  to  do  what  he 
can  to  avert  the  dangers  which  encompass  us,  and  restore  union 
and  peace.  What  can  and  should  be  done  ?  That  is  the  question 
to-day. 

The  rapid  march  of  events  is  leaving  little  time  to  deliberate,  or 
even  to  act.  Six  States  have  declared  the  union  between  them 
selves  and  the  other  States  to  be  dissolved.  The  Constitution  and 
laws  of  the  United  States  are,  practically,  no  longer  laws  for  them. 
They  are  about  to  form  a  confederacy,  the  only  definite  and  agreed 
object  of  which  seems  to  be  the  military  defence  of  the  position 
they  have  assumed. 

At  least  in  two  places,  the  military  power  of  the  United  States 
and  of  the  seceding  States  is  now  set  in  hostile  array,  within  strik- 
VOL.  i.  22 


338  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1861. 

ing  distance.  A  supposed  public  policy,  popular  passion,  any  one 
of  the  many  casualties  which  attend  on  hostile  forces,  in  each  oth 
er's  presence,  may  begin  a  civil  war.  We  may  hear  its  sounds  in 
the  stillness  of  any  evening,  or  they  may  be  borne  to  our  ears  on 
the  next  morning's  breeze. 

Some  of  the  causes  which  have  produced  these  events  have 
deeply  excited  and  alarmed  all  the  other  slave-holding  States. 

The  greater  part  of  the  people  of  those  States  are  about  to  take 
early  organized  action  on  the  question  of  Secession.  It  is  difficult 
to  see  how  the  next  thirty  days  can  fail  to  produce  decisive  results, 
one  way  or  the  other.  If  Maryland,  Virginia,  North  Carolina, 
Kentucky,  Tennessee,  and  Missouri  remain  in  the  Union,  I  think  I 
can  see  how  we  may  have  peace,  and  a  reasonable  hope  of  restoring 
our  country  to  its  former  completeness. 

And  if  we  cannot  in  your  time,  Mr.  Chairman,  or  in  mine, 
regain  the  unbroken  circle  within  whose  limits  we  have  been  per 
mitted  to  enjoy  such  security  and  honor,  we  shall  yet  have  a  great 
country,  which  can  calmly  bide  its  own  time  for  convincing  its 
former  erratic  members,  in  some  appropriate  ways,  that  their  inter 
ests  and  honor  are  identical  with  our  own. 

Who  that  loves  his  country  will  not  do  what  he  can  to  assist 
those  Border  States  to  remain  within  the  Union?  Are  there  any 
insuperable  difficulties  in  doing  so  ?  Let  us  consider  and  decide  for 
ourselves.  Let  us  take  hold  of  this  subject  as  a  practical  thing, 
which  it  belongs  to  the  people,  the  true  arid  only  sovereigns,  to 
consider  and  decide. 

We  have  trusted  sundry  persons,  here  and  there,  with  this  or 
that  agency  in  our  affairs.  We  have  trusted  no  man,  and  no  set 
of  men,  to  make  our  opinions  for  us.  We  form  them  for  ourselves, 
and  hold  every  public  servant  accountable  accordingly.  And  in 
this  great,  unhappy  controversy,  which  threatens  so  much  that  is 
disastrous  to  ourselves  and  our  children,  we,  as  a  part  of  the  people, 
choose  to  come  together  in  this  hall,  and  hear  and  judge  concerning 
this  matter.  Such  I  understand  to  be  the  purpose  of  this  meeting ; 
and  I  proceed  to  address  myself  to  the  topics  which  seem  to  me  to 
belong  to  it. 

And  I  begin  by  saying,  that,  whatever  may  heretofore  have  been 
the  differences  of  opinion  among  reflecting  men  in  the  Northern 
States,  I  believe  all  may  be  found,  at  this  moment,  on  one  side  or 
the  other  of  a  line  easily  described,  and  that  there  are  not  radical 


1861  |  SPEECH   IN   FANEUIL   HALL.  339 

differences  between  those  who  are  on  the  same  side  of  that  line. 
It  divides  those  who,  in  the  existing  emergency,  think  every  thing 
reasonable  should  now  be  done  to  meet  the  views  and  wishes  of  the 
conservative  people  of  the  border  slave  States,  from  those  who 
think  nothing  at  all  should  be  done.  On  one  side  or  the  other  of 
that  line  the  Federal  government  and  the  people  of  the  Northern 
States  must  place  themselves. 

In  my  judgment,  the  only  doubt  is,  not  whether  concessions  are 
ultimately  to  be  made,  but  whether  they  are  to  be  made  in  season  ; 
whether  concessions  are  to  be  so  made  as  to  avert  civil  war ;  or 
are  to  be  made  in  consequence  of  civil  war,  and  in  attempts  to 
repair  wounds  which  civil  war  will  have  inflicted. 

I  look  upon  this  question,  whether  something  reasonable  should 
now  be  done,  or  nothing  should  now  be  done,  in  deference  to  the 
views  and  wishes  of  the  slave-holding  States  still  remaining  in  the 
Union,  as  the  great  and  paramount  question  of  this  day,  —  this 
day,  which  is  one  of  the  very  few  remaining  days  in  which  it  can 
be  seasonably  decided  and  acted  on.  Let  it  be  determined  that  all 
just  and  reasonable  concessions  should  now  be  made,  and  I  have 
confidence  that  it  will  not  be  found  impracticable  to  agree  what 
they  should  be.  And  therefore  I  address  myself,  first  of  all,  to  this 
momentous  question,  and  ask  your  voices  upon  it,  whether  this  be  or 
be  not  the  time  to  act. 

But  before  I  proceed  further,  I  desire  to  prevent  all  possible 
misconception  concerning  my  own  opinion  as  to  what  is  termed 
the  right  of  secession.  I  consider  the  Constitution  of  the  United 
States  to  have  been  ordained  by  the  people  of  the  United  States, 
acting  through  their  several  State  organizations.  I  believe  it  to  be 
what  the  Constitution  asserts  of  itself  in  so  many  words,  "  the  su 
preme  law  of  the  land."  Not  a  league,  but  a  law  ;  like  all  other 
laws,  binding  when  obeyed,  none  the  less  binding  because  dis 
obeyed  by  those  subject  to  its  authority. 

And,  consequently,  Secession,  whether  successful  or  unsuccessful, 
is  successful  or  unsuccessful  revolution. 

At  the  same  time,  two  things  are  indisputable.  The  one  is,  that 
the  right  of  revolting  against  an  unjust  and  oppressive  government 
is  one  of  the  inalienable  attributes  of  every  people.  And  the 
other  is,  that  a  union  of  organized  and  powerful  States  necessarily 
contains  within  itself  organized  arid  powerful  instruments  of  revo 
lution. 


340  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1861. 

The  events  of  the  last  fifty  days  have  afforded  the  most  striking 
evidence  of  this.  For,  by  the  mere  fiat  of  conventions,  we  have 
seen  the  laws  of  the  United  States  silenced,  their  property  seized, 
and  their  power,  for  the  time,  annihilated  throughout  a  great  tract 
of  country,  extending  from  the  Atlantic  Ocean  to  the  Mississippi 
River.  It  is  with  States  thus  organized,  thus  prepared  for  revo 
lution,  that  we  have  to  deal.  We  must  bear  in  mind,  also,  that  the 
question  is  not  what  we  think  of  their  grievances,  or  apprehensions 
of  danger  to  their  peace  and  security,  but  what  they  think  of  them. 
They  will  act  on  their  own  views  of  their  own  necessities,  not 
on  ours.  And,  therefore,  if  we  would  form  a  correct  estimate  of 
what  their  conduct  is  likely  to  be,  we  must  not  content  ourselves 
with  denying  that  they  have  occasions  for  complaint,  but  must,  at 
least,  listen  to  what  they  assert  them  to  be. 

Now,  looking  at  what  has  actually  occurred  in  the  secession  of 
six  States  ;  at  the  preparations  for  decisive  action  already  made  in 
some  of  the  Border  States  ;  at  the  common  interest  of  all  the  slave- 
holding  States  in  the  subject  of  slavery  ;  at  the  unanimity  of  feeling 
which  springs  from  it ;  at  the  conviction  which,  however  ill-founded, 
undoubtedly  now  exists,  that  the  President  elect  will  be  placed  in 
power  by  a  party  confined  to  the  Northern  States,  hostile  to  slavery, 
and  dangerous  to  their  peace;  —  considering  that  the  secession  of  six 
States  has  left  the  legislative  power  in  the  hands  of  that  party  ;  that, 
in  the  course  of  nature,  important  changes  may  be  expected  in  the 
judicial  department  of  the  government  during  the  next  four  years  ; 
and  that  their  sincere  and  urgent  apprehensions  of  injustice  are  met 
only  by  irresponsible  individual  assurances  that  there  is  no  occasion 
for  alarm,  while  nothing  is  done  to  regain  their  confidence  ;  —  con 
sidering  all  this,  should  we  have  any  rational  ground  of  confidence 
that  the  Border  slave  States  will  continue  in  the  Union  if  we 
should  continue  to  do  nothing? 

Undoubtedly  there  now  exists  in  each  of  those  States  a  power 
ful  party  friendly  to  the  Union.  But  how  long  could  it  stand, 
how  long  would  it  attempt  or  desire  to  stand,  against  a  settled 
conviction  in  the  minds  of  their  people  that  the  North  is  indif 
ferent  to  their  complaints,  and  intends  to  employ  no  agency  to 
retain  them  in  the  Union  but  military  force  ?  Sir,  the  Union 
party  will  dissolve  and  disappear  under  the  influence  of  popular 
passion  excited  by  that  conviction,  like  Northern  snow  under  a 
Southern  sun. 


1861.]  SPEECH   IN   FANEUIL    HALL.  341 

Is  this  party  to  be  made  powerless  through  our  inaction  ?  Will 
you  stand  still  and  see  those  who  would  restore  peace  and  union 
swept  into  the  gulf  of  secession  and  war,  for  want  of  our  encouraging 
acts  and  helping  hands?  If  not,  let  us  have  action.  No  mat 
ter  what  becomes  of  party  platforms.  We  will  use  the  planks  of 
all  of  them  to  make  a  bonfire  wherewith  to  celebrate  returning 
peace,  and  think  that  is  the  best  use  they  were  ever  put  to.  Let 
us  have  action,  —  just,  wise,  conciliatory  action.  Let  us  hold 
out  the  hand  of  friendship  to  every  man  who  has  comprehensive 
patriotism  enough  to  propose  a  plan  for  it,  whether  his  name  be 
Seward  or  Douglas,  Etheridge,  Adams,  or  Crittenden.  Is  there 
any  insurmountable  difficulty  in  agreeing  on  a  plan  of  pacifica 
tion  ?  I  do  not  believe  it.  The  subjects  are  few,  easily  understood, 
and  lie  within  a  manageable  compass.  The  sober  second-thought 
of  the  Northern  people  has  never  yet  failed  to  be  moderate  and 
wise.  Upon  some  important  points  there  are  no  differences  of 
opinion  among  them,  if  we  exclude  that  small  number  who  avow 
their  hostility  to  the  Constitution,  and  their  wish  to  destroy  the 
government.  I  pray  you  to  consider  each  of  the  principal 
subjects  involved  in  this  unhappy  family  quarrel,  and  see  if 
there  be  not  a  way  of  peace,  without  any  sacrifice  of  integrity 
or  honor. 

The  most  practically  important  subject,  and  that  from  which  all 
the  others  directly  spring,  is  the  existence  of  negro  slavery  within 
the  States  themselves.  Now  there  is  no  political  party  in  the 
North  which  does  not  admit  that  the  existence  of  this  institution  in 
any  State  is,  and  of  right  ought  to  be,  wholly  dependent  on  the 
will  of  the  people  of  that  State ;  that  neither  the  Federal  govern 
ment,  nor  the  government  of  any  other  State,  nor  the  people  of 
any  other  State,  have  any  just  right  or  claim  whatsoever  to  inter 
fere  therewith ;  that  what  neither  of  these  have  any  just  right  or 
claim  to  do,  directly  and  openly,  they  can  have  no  just  right  or 
claim  to  do  indirectly  and  secretly  ;  that  fraud  is  as  unjustifiable 
as  force ;  that  if  the  legislative  power  of  Massachusetts  cannot  be 
used  to  break  the  ties  between  master  and  slave  in  Virginia  by 
force,  neither  can  force  or  fraud  be  used  for  that  end  by  citizens 
of  Massachusetts,  or  by  aliens,  dwelling  within  its  limits,  and  sub 
ject  to  its  control. 

Now  if  all  this  be  admitted,  and,  I  repeat,  I  know  of  no  North 
ern  political  party  which  denies  any  part  of  it,  there  ought  to  be 


342  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1861. 

no  real  difficulty  in  procuring  suitable  provisions  of  the  Constitution 
arid  laws  ft>  give  practical  effect  to  these  principles. 

First  of  all,  the  Constitution  of  the  United  States  should  contain 
a  provision  absolutely  securing  each  slave-holding  State  from  all 
interference  with  this  institution  within  the  State  by  the  Federal 
government.  Suitable  laws  should  be  passed  by  Congress  to 
guard  the  several  States  from  organized  attempts  to  set  on  foot,  in 
any  other  State,  the  means  of  exciting  insurrection.  And  I  hold 
it  to  be  the  plain  duty  of  every  State,  also,  to  enact  laws  which, 
without  unduly  interferring  with  individual  liberty  of  speech  or 
action,  shall  punish  conspiracies  to  interfere  with  the  institution  of 
slavery  in  any  other  State  by  force  or  fraud.  And  I  ask  you 
to-day,  if  there  ought  to  be  any  just  impediment  to  prevent  us 
from  affording  to  our  brethren  in  the  Border  States  these  evi 
dences  of  our  sincerity  and  these  means  for  their  security.  Let 
us  not  forget  that,  with  them,  this  is  a  practical  question  of  the 
last  importance.  It  concerns  the  daily  and  the  nightly  safety  of 
themselves  and  their  families.  If  we  are  sincere  in  our  disclaimer 
of  all  right  or  intention  to  cause  or  permit,  among  ourselves,  any 
attack  on  their  safety,  how  can  we  refuse  to  embody  our  princi 
ples  in  appropriate  legislation.  If  we  could  think  their  apprehen 
sions  founded  on  no  facts,  would  it  be  right  for  us  to  refuse  to 
relieve  —  even  their  unnecessary  fears?  In  the  face  of  what  has 
been  done  in  the  light  of  day,  and  of  still  more  which  no  sane  man 
doubts  has  been  secretly  concocted  and  executed,  what  candid  man 
will  venture  to  assert  that  there  is  no  practical  necessity  for  such 
laws  ?  I  repeat,  then,  that  so  far  as  respects  the  absolute  security 
of  slavery  within  the  States  from  all  attempts  at  interference  by 
legislation,  by  force,  or  by  fraud,  every  political  party  in  the 
North  is  pledged  to  it  ;  and  there  ought  to  be  no  hesitation  in 
proving  the  sincerity  of  that  pledge  by  prompt  and  efficient  action. 
If  there  should  be,  let  the  responsibility  rest  on  those  who  palter 
with  the  danger. 

Another  difficulty,  however,  grows  out  of  the  fact  of  the  exist 
ence  of  this  institution  in  fifteen  of  the  States ;  I  refer  to  the  use 
of  the  territory  of  the  United  States.  In  my  judgment,  this  part 
of  the  subject  has  assumed  a  factitious  importance,  and  has  been 
surrounded  by  imaginary  difficulties  which  in  no  degree  belong  to 
it.  The  causes  of  this  are  easily  discovered,  but  the  present  is  not 
a  suitable  occasion  for  their  discussion.  In  general,  they  may  be 


1861.]  SPEECH   IN   FANEUIL   HALL.  343 

said  to  have  been  the  repeal  of*  the  Missouri  Compromise ;  the 
opinion  of  the  Supreme  Court  concerning  the  power  of  Congress 
over  the  Territories  ;  the  struggles  to  establish  and  exclude  slavery 
in  Kansas  ;  and  the  formation  of  a  political  party  in  the  Northern 
States,  which  derived  some,  at  least,  of  its  ostensible  strength  and 
activity  from  the  excitement  which  that  repeal  and  opinion  and  those 
struggles  occasioned.  We  have  nothing  to  do,  at  this  moment, 
with  the  merits  of  any  or  all  these  causes  ;  they  who  are  responsi 
ble  for  each  of  them  may  have  been  wholly  right,  or  wholly  wrong, 
or,  which  is  more  often  true  in  respect  to  great  and  complicated 
human  affairs,  partly  right  and  partly  wrong. 

However  this  may  have  been,  and  whatever  may  have  been  the 
causes,  the  consequence  was,  that,  for  a  time,  it  seemed  as  if  the 
question  of  slavery  in  the  Territories  of  the  United  States  was  not 
only  the  paramount,  but  almost  the  only,  national  question  worthy 
of  any  consideration,  —  that  it  was  of  such  stupendous  magnitude 
that  the  national  existence  must  be  staked  on  it.  Now  that  the 
smoke  of  the  contest  has  cleared  away,  it  has  become  plain  to  those 
who  have  eyes  and  will  use  them,  that  no  such  proportions  now  be 
long  to  this  subject. 

In  the  midst  of  all  the  existing  excitement  and  alarm,  Kansas 
has  been  quietly  admitted  to  the  Union  as  a  free  State ;  and 
New  Mexico  is  the  only  questionable  Territory  now  belonging  to 
the  United  States.  It  was  of  New  Mexico  that  Mr.  Webster 
said,  in  1850,  that,  though  opposed  to  the  extension  of  slavery, 
he  was  willing  to  trust  the  laws  of  nature,  which  prohibited  its 
establishment  there. 

It  is  of  New  Mexico  that  Mr.  Adams  l  has  said,  in  substance,  in 
that  speech,  pronounced  within  a  few  days  in  the  House  of  Repre 
sentatives,  admirable  in  matter  and  manner,  —  worthy  of  Massachu 
setts,  of  his  ancestry,  and  of  himself,  —  that,  though  opposed  to  the 
extension  of  slavery,  and  though  New  Mexico  is,  confessedly,  in 
no  condition  to  be  admitted  as  a  State,  yet,  for  the  sake  of  termi 
nating  our  unhappy  quarrels,  he  would  vote  to  admit  her  as  a  slave 
State,  feeling  entire  confidence  that,  as  only  twelve  slaves  were 
resident  there  after  a  territorial  existence  of  ten  years,  the  laws 
of  nature  would  take  care  of  the  question  of  slavery  in  the 
future,  as  they  have  done  in  the  past. 

1  The  Hon.  Charles  Francis  Adams. 


344  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1861. 

And  now  let  me  ask  you,  men  of  Massachusetts,  if  the  peace 
and  welfare  of  this  great  and  glorious  and  beloved  country  of  ours 
is  to  be  kept  at  hazard  by  disputes  about  the  particular  mode  of 
disposing  of  such  an  abstraction  as  this. 

But  then  further  difficulty  is  found,  or  made,  respecting  possi 
ble  future  territory.  It  is  supposed  the  people  of  Virginia  and 
Pennsylvania,  Kentucky  and  Massachusetts,  New  York  and  Ten 
nessee,  are  obliged  to  plunge  into  a  civil  war  in  a  quarrel  about  the 
sick  man's  effects.  In  view  of  what  has  been  actually  done,  and 
omitted  to  be  done,  during  the  past  month,  it  would  be  extremely 
rash  to  feel  no  apprehensions  of  this. 

But  I  firmly  believe  that,  if  the  people  can  get  at  this  question, 
they  will  settle  it  promptly,  and  to  their  own  entire  satisfaction. 
For  myself,  I  would  not  attempt  to  put  aside  this  subject.  I  would 
meet  it  fairly,  upon  such  grounds,  and  in  such  a  spirit,  as  gave  us 
the  Constitution  of  the  United  States.  1  would  say  to  our  South 
ern  brethren,  I  admit  you  have  a  fair  claim  to  enjoy  by  your  o\vn 
means,  and  in  your  own  way,  your  fair  share  of  any  territory  owned 
by  the  United  States.  But  you  must,  I  think,  admit  that  you  are 
asking  for  something  not  a  little  extraordinary,  when  you  desire  us 
to  agree  that  you  shall  have  every  thing  which,  under  any  circum 
stances,  and  of  any  extent,  and  through  all  time,  may  be  acquired  by 
the  United  States  south  of  a  parallel  of  latitude,  with  the  consent  of  a 
bare  majority  of  those  voting  in  the  Houses  of  Congress.  A  prudent 
regard  for  the  future  peace  of  the  country  forbids  us  to  consent  to 
introduce  so  fertile  a  source  of  agitation.  Amend  the  Constitution, 
so  that  no  more  territory  can  be  acquired  without  the  consent  of  so 
large  a  part  of  the  people  that  party  agitation  for  this  purpose 
shall  be  properly  guarded  against,  and  the  just  interests  of  minori 
ties  protected,  and  we  shall  not  disagree.  For  my  own  part,  I  con 
sider  such  an  amendment  of  the  Constitution  far  transcends  in 
practical  importance  any  matter  now  in  issue  between  the  Northern 
and  the  Border  States. 

It  is  the  result  of  such  observation  and  reflection  as  I  have 
been  able  to  bestow  upon  the  working  of  the  government,  and, 
what  is  more  important,  it  is  the  opinion  of  some  of  the  wisest 
practical  statesmen  whom  I  have  known,  that  the  further  extension 
of  the  United  States  is  fraught  with  many  and  great  dangers, — 
amongst  which  is  the  ever-increasing  difficulty  of  so  harmonizing 
the  public  counsels  as  to  be  able  to  agree  on  the  measures  neces- 


1861.]  SPEECH   IN    FANEUIL   HALL.  345 

sary  for  the  welfare  of  the  country.  I  cannot  now  do  more  than 
allude  to  this  subject,  great  and  important  as  it  is.  But  I  can  have 
no  hesitation  in  saying,  that,  if  such  an  amendment  of  the  Constitu 
tion  as  I  have  indicated  should  be  one  of  the  consequences  of 
the  present  unhappy  difficulties,  it  would,  in  my  judgment,  add  one 
more  to  the  many  instances  in  which  the  providence  of  God  has 
brought  good  out  of  evil  for  our  hitherto  favored  land. 

So  far  as  I  know,  the  only  other  causes  of  irritation  and  alarm 
arise  from  the  constitutional  obligation  to  surrender  fugitive  slaves. 
The  obligation  is  admitted.  But,  on  the  one  side,  it  is  insisted  that 
the  Federal  legislation  on  this  subject  is  unnecessarily  harsh,  irri 
tating,  and  capable  of  being  used  for  purposes  of  oppression.  On 
the  other  side,  it  is  replied  that  the  legislation  of  the  Northern 
States  is  designed  to  obstruct  the  execution  of  the  Federal  laws, 
and  is  insulting  to  those  States  whose  citizens  claim  rights  under 
them. 

In  my  humble  opinion,  both  complaints  have  some  foundation, 
and  all  cause  for  both  ought  to  be  removed  without  delay.  I 
believe  the  Fugitive  Slave  Law  ought  to  be  and  can  be  so  modified, 
as  to  do  away  with  all  just  cause  of  complaint,  either  of  harshness 
or  inefficiency.  I  have  not  had  opportunity  to  examine  the  bill 
recently  introduced  by  Mr.  Douglas  into  the  Senate  of  the  United 
States  ;  but,  from  the  account  I  have  received  of  it,  there  is  reason 
to  believe  it  embodies  legislation  which  will  be  satisfactory  to  both 
sections  of  the  country. 

I  know  it  is  insisted  by  some  among  us,  whose  opinions  I  re 
spect,  that  the  State  laws  commonly  called  Personal  Liberty  Bills 
are  not  in  conflict  with  the  Constitution  and  laws  of  the  United 
States.  I  have  not  been  able  to  bring  my  mind  to  that  conclusion. 
This  is  not  a  suitable  occasion  to  enter  into  an  argument  on  the 
subject.  But  I  find  that  in  1855,  soon  after  the  extradition  of  a 
fugitive  slave,  the  two  houses  of  the  Legislature  of  Massachusetts 
passed  an  act,  commonly  called  the  Personal  Liberty  Bill.  They 
sent  it  to  the  Governor  for  his  signature.  He  returned  it  un 
signed,  with  a  message  to  the  effect  that  he  had  taken  the  opinion 
of  the  Supreme  Judicial  Court  upon  certain  questions,  and  the 
opinion  of  the  then  Attorney-General  Clifford  upon  the  bill  itself. 
He  quoted  a  part  of  the  opinion  of  the  court,  showing  that  the 
State  authorities  could  not  interfere  with  a  person  in  the  custody 
of  the  laws  of  the  United  States ;  and  appended  the  opinion  of  the 


346  MEMOIR    OF   BENJAMIN    BOBBINS    CUKTIS  [1861. 

Attorney-General,  that  the  bill,  if  passed  and  obeyed,  must  pro 
duce  a  conflict  between  the  State  and  Federal  jurisdictions.  In 
stead  of  inserting  any  thing  to  show  that  it  was  not  the  purpose  of 
the  Legislature  to  interfere  with  fugitive  slaves  in  the  custody 
of  the  Marshal  of  the  United  States,  they  passed  the  bill,  not 
withstanding  the  Governor's  veto.  And  I  feel  bound  to  say,  that 
an  examination  of  those  provisions  of  that  law,  which  still  re 
mains  on  the  statute-book,  has  left  no  reasonable  doubt  on  my 
own  mind,  that  it  was  the  intention  of  the  Legislature  to  require 
State  officers  to  take  fugitive  slaves  from  the  custody  of  the  Mar 
shal,  and  have  the  claim  of  the  master  tried  by  a  jury  in  a  State 
court. 

I  believe  no  constitutional  lawyer  will  undertake  to  maintain  the 
validity  or  propriety  of  such  a  law.  But,  in  my  judgment,  there 
is  no  necessity  to  settle  the  abstract  question  of  the  validity  of  these 
laws.  How  do  they  who  assert  their  validity  reconcile  them  with 
the  Constitution  ?  By  denying  their  applicability  to  any  case  which 
any  reasonable  man  can  expect  to  happen  ?  In  other  words,  by 
depriving  them  of  all  practical  importance  ?  Shall  such  laws  be 
kept  on  the  statute-book,  when  their  only  fruits  are  irritation  and 
bad  blood  between  those  who  ought  to  live  in  peace  ?  Shall  they 
be  kept  there  when  proved  to  be  offensive  to  friendly  States  ? 
Shall  they  be  kept  there  when,  to  say  the  least,  many  persons, 
here  and  elsewhere,  quite  competent  to  form  an  opinion  on  such 
a  subject,  have  publicly  and  solemnly  declared  their  deliberate 
conviction  that  they  are  in  conflict  with  the  Constitution  ?  If  they 
are  retained,  what  will  cause  their  retention  ?  Will  it  be  patriotism 
and  a  calm  devotion  to  duty,  or  blind  party  spirit  ?  And  what 
will  the  people  say  hereafter,  what  do  you  think  now,  of  those  who 
would  thus  hazard  our  welfare  ? 

Fellow-citizens,  I  came  here  to  discharge  what  I  believed  to  be 
a  duty,  at  a  time  when  our  country  is  in  such  a  condition  as  to  need 
even  the  small  efforts  of  one  so  humble  as  myself.  I  thank  you 
for  the  patience  with  which  you  have  listened  to  me. 

I  need  not  recount  what  followed  these  and  all  other 
efforts  to  stay  the  march  of  Secession,  or  describe  Low, 
on  the  one  hand,  men  like  Judge  Curtis  were  ridiculed 
in  the  North  as  "  Union-savers,"  and  how,  on  the  other 
hand,  the  Secessionists  of  the  South  derived  new  strength 


1861.]  CIVIL  WAR.  347 

from  the  unwillingness  of  a  great  majority  of  those  who 
represented  the  North  in  the  councils  6f  the  country,  to 
make  any  concessions  of  any  kind.  When  at  length  a 
civil  war  followed,  on  the  great  issue  of  the  right  of  State 
secession,  —  an  issue  transferred  from  the  realms  of  argu 
ment  to  the  dread  arbitrament  of  battle,  —  Judge  Curtis 
felt  it  to  be  his  duty  to  promote  every  exertion  of  the  au 
thority  of  the  Federal  government  which  was  warranted 
by  the  Constitution,  and  needful  for  the  exigency.  Mr. 
Lincoln  was  inaugurated  as  President  on  the  4th  of  March, 
1861.  Although  no  Southern  State  had  participated  in 
his  election,  he  was  now  the  lawful  President  of  the  United 
States ;  and  such  a  man  as  Judge  Curtis  could  not  hesitate 
as  to  where  his  duty  led  him. 

There  lies  before  me  a  letter  written  by  him  in  an  early 
stage  of  the  war,  from  his  home  in  Pittsfield,  to  a  friend  in 
Boston,1  which  expressed  very  tersely  the  wdiole  duty  of 
good  citizens  at  that  crisis  :  — 

In  my  judgment,  there  is  but  one  way  to  avert  the  peril.  Sus 
tain  the  established  government,  and  especially  the  President,  so 
long  and  so  far,  and  by  all  ways  and  means  possible  to  a  good 
citizen.  .  .  .  Let  all  be  made  to  know  that  the  people  intend  to 
preserve  their  government,  and  not  to  allow  it  to  be  controlled  by 
irresponsible  cliques  or  committees,  or  by  any  outside  influences 
whatsoever ;  and  that  the  President  may  confidently  rely  on  the 
firmness  and  good  sense  and  patriotic  devotion  of  the  people,  if  he 
honestly  intends  to  defend  and  restore  the  Constitution  and  laws 
of  the  country. 

But  later  on,  when  it  appeared  that  "  irresponsible  cliques 
or  committees  "  were  exercising  a  control  which  he  deemed 
most  pernicious,  and,  above  all,  when  the  President  mani 
fested  a  willingness  to  use  powers  which  Judge  Curtis  did 
not  believe  were  warranted  by  the  Constitution,  he  felt  con 
strained  to  do  what  he  could  for  the  preservation  of  prin- 

1  Letter  to  William  W.  Greenough,  Esq.,  his  brother-in-law. 


348  MEMOIR   OF   BENJAMIN  ROBBINS   CURTIS.  [1862. 

ciples  which  alone  made  the  struggle  for  the  Union  of  any 
value.  The  Proclamation  of  the  President,  issued  on  the 
22d  of  September,  1862,  commonly  called  his  Emancipa 
tion  Proclamation,  was  a  measure  into  which  he  was  com 
pelled  by  persons  who  would  have  opposed  his  administration 
if  he  had  refused  it.  It  was  claimed  by  a  very  large  body 
of  the  citizens  of  the  Northern  States,  that  he  could  not 
take  this  step  within  the  limits  of  the  Constitution.  The 
persons  who  had  urged  it  upon  him  were  indifferent  to  the 
question  whether  it  was  or  was  not  a  step  authorized  by 
the  Constitution.  The  President's  own  idea  concerning 
the  source  of  his  power  to  take  it  was,  that,  as  commander- 
in-chief,  prosecuting  a  war,  he  could  "  take  any  measure 
which  might  best  subdue  the  enemy."  * 

If  this  idea  had  been  suffered  to  pass  unchallenged,  there 
could  have  been,  in  principle,  no  limit  to  the  exercise  of 
power  by  the  President,  —  not  even  the  limit  of  the  physi 
cal  force  at  his  command.  For  if  the  President,  in  a  civil 
war  for  the  preservation  of  the  Constitution,  and  the  resto 
ration  of  its  authority  in  the  Southern  States,  could,  by  a 
stroke  of  his  pen,  change  the  State  laws  which  fixed  the 
relation  of  master  and  slave  in  those  States,  he  could  by 

1  Aside  from  the  newspapers  of  the  period,  I  do  not  know  of  any  author 
ity  to  which  to  refer  the  reader  for  an  account  of  Mr.  Lincoln's  feelings  or 
opinions  concerning  this  Proclamation,  excepting  Mr.  Greeley's  "  American 
Conflict."  That  work  contains  an  account  of  an  interview  granted  by 
President  Lincoln  to  a  deputation  of  clergymen  from  Chicago,  in  which  he 
said :  "  Understand,  I  raise  no  objections  to  it  on  legal  or  constitutional 
grounds  ;  for,  as  commander-in-chief  of  the  army  and  navy  in  time  of  war, 
I  suppose  I  have  a  right  to  take  any  measure  which  may  best  subdue  the 
enemy  :  nor  do  I  urge  objections  of  a  moral  nature,  in  view  of  possible 
consequences  of  insurrection  and  massacre  at  the  South.  I  view  this  mat 
ter  as  a  practical  war  measure,  to  be  decided  on  according  to  the  advan 
tages  or  disadvantages  :*•  may  offer  to  the  suppression  of  the  Rebellion." 
(Vol.  II.  pp.  251,  252.)  At  this  time,  September  loth,  Mr.  Lincoln  was 
unwilling  to  issue  the  Proclamation.  It  was  issued,  however,  on  the  22d  of 
the  same  month,  declaring  that  on  the  first  day  of  January  then  next 
(1863)  the  Executive  would  declare  all  slaves  to  be  free  then  held  in 
any  States  or  parts  of  States  continuing  in  rebellion  against  the  United 
States. 


1862.]  ARBITRARY  ARRESTS.  349 

the  same  power  annihilate  their  whole  political  and  social 
fabric,  and  reduce  them  in  law  to  the  condition  of  conquered 
provinces,  without  even  overrunning  them.  There  was 
either  a  limitation  of  his  power  as  commander-in-chief,  or 
there  was  none.  While  those  who  compelled  Mr.  Lincoln 
to  issue  this  Proclamation  really  cared  nothing  for  the 
source  of  power  to  which  it  was  to  be  referred,  and  while 
the  majority  of  the  Northern  people  were  perhaps  gratified 
that  it  had  been  issued,  and  thought  little  of  any  question 
of  principle  involved  in  it,  Judge  Curtis  felt  that  he  had  a 
duty  to  fulfil.  Nor  was  that  duty  made  less  exigent,  when 
another  Proclamation  —  one  creating  offences  unknown  to 
the  laws,  subjecting  persons  committing  them,  or  guilty  of 
"  any  disloyal  practice,"  to  martial  law,  and  suspending  the 
writ  of  habeas  corpus  —  burst  upon  the  country  as  if  it  were 
the  announcement  of  a  reign  of  terror  ;  — a  reign  which  the 
Secretary  of  War  was  prompt  to  inaugurate  as  effectually  as 
force  could  do  it,  by  orders  establishing  a  military  police  all 
over  the  land,  to  act  under  his  directions  in  making  arrests 
and  reporting  "  treasonable  practices." 

No  satisfactory  reason  has  ever  been  given  for  these  acts 
of  Mr.  Lincoln's  administration.  The  arbitrary  arrests, 
which  so  shocked  and  alarmed  men  who  had  deeply  at 
heart  the  preservation  of  the  existing  government,  had  in 
most  cases  no  excuse  in  any  necessity  of  any  kind.  Some 
of  them  were  wantonly  oppressive  ;  every  one  of  them, 
in  which  the  person  arrested  was  not  in  the  military  ser 
vice,  was  a  violation  of  the  constitutional  liberty  of  the 
citizen.  The  explanation  of  this  strange  phenomenon  in 
our  history  is  to  be  found  partly  in  the  existence  and  activ 
ity  of  a  class  of  men,  who  were  described  by  Judge  Curtis 
in  the  private  letter  above  quoted.  "  The  country,"  he 
said,  "is  full  of  active,  ambitious,  and  unscrupulous  men, 
who  are  seeking,  some  of  them,  their  own  advancement, 
some  of  them  to  work  out  their  own  will,  and  most  of  them 
to  accomplish  both  these  objects."  Still  another  explana- 


350  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS. 

tion  is  to  be  found  in  the  fact,  that  in  an  Administration  too 
weak  to  discover  and  work  out  the  means  of  salvation  for 
the  country  within  the  just  powers  of  the  Constitution,  there 
was  a  Secretary  of  War  whose  energy  and  executive  ability 
were  of  the  kind  that  prefers  the  arbitrary  to  the  lawful, 
and  who  was  by  nature  excessively  imperious. 

Shocked  as  Judge  Curtis  was  by  the  Proclamations  and 
the  accompanying  Orders  of  the  Secretary  of  War,  he  was, 
as  the  reader  has  by  this  time  learned,  not  a  man  of  im 
pulses.  His  large  and  habitual  charity  towards  the  motives 
of  others,  and  his  sense  of  the  extreme  gravity  of  this  crisis 
in  the  affairs  of  the  country,  led  him  to  deliberate  carefully 
before  he  publicly  called  in  question  these  acts  of  the  gov 
ernment.  There  is  extant  a  record  of  the  feelings  with 
which  he  approached  the  performance  of  what  he  regarded 
as  a  public  duty,  written  just  before  he  published  the  well- 
known  pamphlet  entitled  "  Executive  Power."  I  quote 
from  a  letter  to  his  wife,  dated  on  the  eve  of  that  publica 
tion,  and  addressed  to  her  at  Pittsfield.1 

BOSTON,  Oct.  6,  1862. 

...  I  have  written  a  pamphlet  on  the  late  Proclamations  of  the 
President.  I  was  hard  at  work  on  it,  internally,  while  at  Pitts- 
field,  and,  having  completed  it  since  my  return,  have  submitted  to 

1  On  the  29th  of  August,  1861,  my  brother  was  married  to  Miss  Maria 
Malleville  Allen,  of  Pittsfield,  a  granddaughter  of  the  Rev.  Thomas  Allen, 
who  graduated  at  Harvard  College  in  1762,  and  became  the  first  minister 
of  the  town  of  Pittsfield.  He  went,  with  a  portion  of  his  people,  to  the 
battle  of  Bennington.  One  of  his  sons,  the  Rev.  William  Allen,  D.D.,  be 
came  President  of  Bowdoin  College.  Another  son,  Mr.  Jonathan  Allen, 
the  father  of  Mrs.  Curtis,  followed  mercantile  pursuits  in  Boston,  and  made 
a  good  fortune.  He  afterwards  returned  to  Pittsfield  and  made  an  un 
successful  investment  of  his  property  in  a  stock  farm.  On  his  mother's 
side,  he  was  descended  from  Governor  Bradford.  He  died  at  Pittsfield 
in  1845. 

Dr.  William  Allen  married  Maria  Malleville,  a  daughter  of  the  Rev. 
Eleazar  Wheelock,  D.D.,  the  founder  and  President  of  Dartmouth  College. 
For  this  lady  Mrs.  Curtis  was  named. 

The  descent  of  Dr.  Wheelock  from  Captain  Miles  Standish  is  mentioned 
ante,  p.  48,  note. 


1862.]  EXECUTIVE  POWER.  351 

some  wise  friends  here  the  question  of  cui  bono  ?  They  are  far 
stronger  than  I  am  for  the  bono.  I  have  great  reluctance  to  go 
into  the  arena.  The  strife  is  bitter,  and  not  altogether  safe.  But 
if  I  know  myself,  this  reluctance  has  not  influenced  me.  It  is  a 
feeling,  partly,  of  doubt,  whether  any  opposition  to  the  President  is 
now  useful,  and,  mainly,  whether  the  sacrifice  of  feeling  and  in 
terest  which  I  shall  make  will  be  outweighed  by  any  public  good 
to  be  effected.  My  friends  have  strongly  insisted,  and  I  shall 
yield  and  publish  it.  That  it  will  be  read  and  abused,  I  do  not 
doubt.  That  it  will  greatly  influence  the  country,  I  more  than 
doubt.  But  I  do  not  feel  at  liberty  to  refuse  to  make  any  attempt 
to  keep  things  from  being  turned  over,  which  I  can  possibly  effect. 
If  you  wake  up  some  morning  and  find  your  husband  has  gone  to 
Fort  Warren,  do  not  be  disturbed,  for  he  will  come  out  one  of  the 
martyrs  of  this  revolution.  Seriously,  however,  though  there  is  no 
danger  to  me  or  mine,  there  is  great  and  pressing  danger  to  the 
country,  —  danger  of  the  loss  of  ideas,  —  and  this  I  have  tried  to 
encounter  or  obviate.  I  cannot  help  to  subdue  the  enemy  abroad,  — 
I  ought  to  do  what  I  can  to  subdue  the  enemy  at  home. 

The  tone  of  this  pamphlet,  calm,  serious,  unimpassioned, 
but  firm  and  unshrinking,  and  the  personal  authority  of  its 
author,  made  it  exceedingly  obnoxious  to  the  excited  par 
tisans  of  the  Administration.  If  an  attack  had  been  made 
upon  the  Proclamations  in  any  incendiary  spirit,  or  by  one 
who  had  less  weight  of  character  to  support,  and  less  of 
logical  power  to  enforce,  the  objections  to  them,  there 
would  have  been  far  less  of  violent  denunciation  of  the 
writer.  But  this  compact,  perspicuous,  and  reasoned  ex 
hibition  of  the  lawlessness  of  the  Executive  acts,  in  which 
there  was  no  superfluous  word,  and  no  word  that  could 
justly  irritate,  —  pointing,  as  it  plainly  did,  to  the  character 
of  the  revolution  which  those  acts  were  likely  to  precipi 
tate,  —  was  met  in  some  quarters  by  cries  of  "  treason,"  and 
the  like  objurgations. 

Yet  it  would  have  been  well  if  those  who  had  only  op 
probrious  epithets  to  oppose  to  such  a  production  had 
paused  upon  a  single  passage,  in  which  the  author  said: 


352  MEMOIR    OF    BENJAMIN   BOBBINS   CURTIS.  [1862. 

"  The  war  in  which  we  are  now  engaged  is  a  just  and 
necessary  war.  It  must  be  prosecuted  with  the  whole 
force  of  this  government,  till  the  military  power  of  the 
South  is  broken,  and  they  submit  themselves  to  their  duty 
to  obey,  and  our  right  to  have  obeyed,  the  Constitution  of 
the  United  States,  as  '  the  supreme  law  of  the  land.'  But 
with  what  sense  of  right  can  we  subdue  them  by  arms  to 
obey  the  Constitution  as  the  supreme  law  of  their  part  of 
the  land,  if  we  have  ceased  to  obey  it,  or  failed  to  preserve 
it,  as  the  supreme  law  of  our  part  of  the  land?  I  am  a 
member  of  no  political  party.  Duties  inconsistent,  in  my 
opinion,  with  the  preservation  of  any  attachment  to  a  po 
litical  party  caused  me  to  withdraw  from  all  such  associa 
tions  many  years  ago,  and  they  have  never  been  resumed. 
I  have  no  occasion  to  listen  to  the  exhortations,  now  so 
frequent,  to  divest  myself  of  party  ties,  and  disregard  party 
objects,  and  act  for  my  country.  I  have  nothing  but  my 
country  for  which  to  act  in  any  public  affair  ;  and  solely 
because  I  have  that  yet  remaining,  and  know  not  but  it 
may  be  possible,  from  my  studies  and  reflections,  to  say 
something  to  my  countrymen  which  may  aid  them  to 
form  right  conclusions  in  these  dark  and  dangerous  times, 
I  now  reluctantly  address  them." 

If  one  who  dealt  with  momentous  public  questions  in 
this  spirit  was  to  be  regarded  as  a  "  disloyal  citizen,*'  then 
the  free  discussion  of  public  measures  was  at  an  end,  and  the 
time  for  an  irresponsible  despotism,  having  no  basis  save  in 
the  passions  of  the  multitude  and  the  caprices  of  rulers,  had 
arrived.  But  the  violence,  and,  in  some  good  degree,  the 
prejudices,  of  that  period  have  passed  away.  It  is  now 
apparent  that  it  was  to  courage  such  as  his,  to  the  refusal 
of  men  like  him  to  be  silenced  by  the  frowns  of  power,  and 
to  their  adhesion  to  sound  principle  in  times  that  tried  the 
soul  as  those  who  are  to  come  after  us  may  haply  never 
be  tried,  that  we  owe  it  that  we  still  have  the  Constitution 
of  the  United  States,  with  its  guaranties  of  social  order  and 


1862.J  CIVIL  WAR.  353 

personal  freedom.  Certainly  it  will  not  be  denied,  that 
Judge  Curtis  contributed  his  part  to  prevent  u  the  loss  of 
idoas  "  the  preservation  of  which  was  essential  to  our  wel 
fare,  in  the  manner  and  the  spirit  that  became  him. 

After  the  publication  of  this  pamphlet  in  Boston,  pro 
fessional  duties  in  the  Supreme  Court  carried  him  to 
Washington  ;  and  I  make  some  further  extracts  from  his 
letters  to  Mrs.  Curtis,  written  during  the  winter  of 
1862-63. 

WASHINGTON,  Dec.  15,  1862. 

.  .  .  The  boys  have  it  now  in  our  field,  and  while  American 
citizens  are  slaughtering  each  other  in  thousands,  the  need  of  them 
is  most  evident.  Washington  was  always  a  fatiguing  place  to  me, 
even  when  it  was  a  fresh  scene,  and  the  place  where  I  ha8  am 
bitions  ;  and  now  that  I  have  grown  wiser,  and  have  none,  in  the 
usual  acceptation  of  the  word,  and  most  of -my  old  friends  have 
gone,  either  to  a  better  world,  or  to  decay  here,  or  run  away  to 
Secessia,  and  with  the  blackest  clouds  lowering  around  our  na 
tional  life,  this  city  is  very  dreary  to  me.  But  I  have  enough 
to  do  to  keep  me  from  idle  thoughts ;  and  that  I  am  able  to  work 
for  you  and  the  dear  children,  in  honorable  and  useful  employ 
ment,  is  enough  to  keep  me  content,  if  I  have  not  much  about  me 
that  is  pleasant. 

.  .  .  The  Administration  and  its  followers  are  feeling  despond 
ent  about  General  Burnside's  army.  The  loss  in  Saturday's  fight  was 
dreadful.  I  think  it  will  reach,  and  probably  exceed,  ten  thousand. 
1  see  no  one  who  has  any  discernment  of  probable  end.  All  looks 
dark  to  those  who  have  eyes.  It  cannot  be,  that  such  a  state  of 
things  should  long  continue. 

WASHINGTON,  Dec.  26,  1862. 

...  I  called  on  Mr.  Stanton  last  evening,  when  I  had  a  right 
to  expect  to  find  him  at  home.  I  did  not,  and  was  glad  not  to.  I 
had  determined  to  say,  "  We  will  not  talk  about  public  affairs." 
He  returned  his  card  the  next  day.  1  have  been  urged  to  go  and 
see  the  President.  I  think  not.  It  would  do  no  good,  and  would 
give  me  no  pleasure.  I  suppose  he  would  say  the  same.  My 
hopes  for  the  Union  and  the  Constitution  are  nowhere.  .  .  .  But 
I  do  not  know  why  I  should  write  these  things  to  you.  Only  my 
heart  and  my  mind  are  full  of  them. 
VOL.  i.  23 


854  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1862. 

WASHINGTON,  Jan.  6,  1863. 

.  .  .  Speaking  of ,  I  have  known  him  a  long  time,  and  he 

is  a  hard,  round,  dry  little  Ego,  about  the  size  and  consistency  of  a 
rattan ;  and  I  hope  that  in  some  future  state  of  existence  he  will 
meet  with  some  Aaron  who  will  make  the  rod  sprout  and  blossom 
yet.  I  ought  to  add,  all  I  know  of  him  is  outside,  and  he  may  have 
a  world  within  yet  undiscovered  by  me. 

I  had  a  long  and  interesting  conversation  with  Mr.  Stanton  last 
night.  He  is  a  strange  man,  and  one  of  the  strangest  things  is, 
that  he  manifests  a  very  strong  feeling  of  regard,  I  might  say  affec 
tion,  for  me.  I  had  written  a  pamphlet  directed  against  his  acts, 
which,  whatever  may  be  its  merits,  has  undoubtedly  produced  a 
powerful  impression  on  the  country  against  him  and  the  Admiuis- 
tratiqp.  Loyal  certainly,  devotedly  so,  and  allowing  no  man  to 
doubt  my  devotion  to  the  country,  —  respectful  to  the  President  and 
to  himself,  not  for  rhetorical  purposes,  but  actual  conviction,  — 
still  [it  was]  calculated  to  excite  (as  in  the  mind  of  the  Presi 
dent  it  has  excited)  hostile  feeling.1  But  when  I  saw  him  [Mr. 
Stanton]  on  the  1st  of  January,  he  asked  me  to  name  some 
time  when  he  could  see  me,  and  last  evening  I  spent  two  hours 
with  him,  discussing  these  very  questions,  in  part,  and  when  I 
came  away  he  said  he  had  not  had  so  pleasant  an  evening  since  I 
saw  him  last  February,  and  begged  me  to  come  again.  I  cannot 

1  Mr.  Lincoln,  during  his  famous  contest  with  Mr.  Douglas,  when  they 
"  stumped "  the  State  of  Illinois  together,  and  made  speeches  against 
each  other  from  the  same  platforms,  carried  with  him,  as  a  vade  mecum, 
Judge  Curtis's  dissenting  opinion  in  the  Dred  Scott  case.  No  doubt  it  fur 
nished  him  with  many  an  argument,  which  he  could  use  pertinently  in  the 
discussion  of  questions  debated  by  him  and  his  antagonist,  in  that  memora 
ble  contest.  But  it  is  strange  that  he  did  not  recognize  in  Judge  Curtis's 
pamphlet,  "  Executive  Power,"  the  same  devotion  to  the  Constitution,  the 
same  high  power  of  contemplating  its  true  meaning  as  the  only  guide  of 
public  and  official  action,  which  he  admired  in  the  dissenting  opinion.  Mr. 
Lincoln  was  too  sensible  a  man  not  to  know  that  as  President,  either  in  his 
civil  or  his  military  capacity,  he  could  not  promulgate  decrees,  that  would 
have  the  force  of  laws,  affecting  the  domestic  relations  of  the  people  of  any 
State  or  States.  If  the  pamphlet  on  Executive  Power  excited  in  his  breast, 
hostile  feelings  against  the  writer,  it  must  have  been  because  he  considered 
that,  in  the  circumstances  of  the  country,  he  had  some  right  to  expect  any 
official  act  of  his  to  pass  unchallenged.  That  he  could  reasonably  expect 
this,  no  one  probably  would  now  contend. 

I  notice  that  in  the  records  of  the  Class  of  1829,  a  copy  of  which,  so 


1862.]  EXECUTIVE   POWER.  355 

doubt  his  sincerity,  but  I  do  not  quite  comprehend  his  very  decided 
liking. 

Among  the  arguments  or  assertions  with  which  the  criti 
cisms  on  this  pamphlet  abounded,  the  dernier  resort  was  al 
most  universally  found  in  the  comprehensive  position  that 
"  rebels  have  no  rights."  Judge  Curtis  was  supposed  to  have 
overlooked  or  disregarded  a  principle,  by  which  a  lawful  gov 
ernment,  engaged  in  putting  down  a  rebellion,  may  resort  to 
any  measure  or  do  any  act  which  it  deems  necessary  ;  that, 
as  rebellion  is  the  renunciation  and  destruction  of  all  law, 
rebels  are  out  of  the  pale  of  all  law.  Private  letters  from 
persons  whose  studies  or  reflections  did  not  enable  them  to 
see  the  unsoundness  of  such  a  doctrine,  when  applied  to  a 
civil  war  for  the  salvation  of  a  written  Constitution,  but 
who  caught  at  the  idea  that  rebels  have  no  rights  as  the 
solution  of  all  difficulties,  lie  before  me  in  considerable 
numbers.  The  partisan  press  of  course  echoed  this  sup 
posed  principle,  in  all  its  forms.  It  received  the  sanction, 
among  others,  of  a  gentleman  occupying  the  high  position 
of  Professor  of  Law  in  Harvard  University,  in  a  letter 
written  in  his  own  person  and  published  in  one  of  the 

far  as  they  relate  to  my  brother,  I  have  been  permitted  to  see,  there  is  an  entry 
by  the  Secretary  which  strongly  illustrates  how  'Judge  Curtis  was  by  some 
persons  misunderstood.  The  record  speaks  at  length,  and  in  glowing  terms 
of  eulogy,  of  his  dissenting  opinion  in  the  Dred  Scott  case.  This  is  followed 
by  a  note,  in  these  words :  "  Again,  and  seemingly  adverse  to  the  above,  in 
October,  1862,  he  prepared  a  legal  opinion  and  argument,  which  was  pub 
lished  in  Boston  in  pamphlet  form,  to  the  effect  that  President  Lincoln's 
Proclamation  of  prospective  emancipation  of  the  slaves  in  the  rebellious 
States  is  unconstitutional."  It  is  not  a  little  singular  that  all  could  not  see, 
that  between  the  constitutional  power  of  Congress  to  prohibit  the  introduc 
tion  of  slavery  into  a  Territory  of  the  United  States,  and  the  power  of 
the  President  to  abolish  slavery  in  a  State  by  his  Proclamation,  there  was  not 
even  a  "seeming"  analogy.  But  in  those  days  they  only  were  consistent 
who  desired  to  see  an  end  of  slavery,  regardless  of  the  means.  The  proposal 
to  abolish  it  by  an  amendment  of  the  Constitution  proves  how  futile  in 
point  of  law  was  the  Proclamation  of  1862.  But  the  reader  will  have  the 
dissenting  opinion  and  the  pamphlet  on  Executive  Power  both  before  him, 
and  a  comparison  will  disclose  the  inconsistency,  if  any  there  be.  (See  infra, 
Vol.  II.,  Index.) 


856  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1862. 

public  journals.1  In  short,  it  was  the  one  great  and  popular 
answer,  in  New  England,  to  Judge  Curtis's  objections  to 
the  President's  Proclamations. 

He  did  not  deem  it  needful  to  enter  into  a  newspaper 
discussion  with  any  of  his  critics ;  but,  as  the  first  edition 
of  his  pamphlet  was  immediately  exhausted,  the  publication 
of  a  second  gave  him  an  opportunity  to  insert  some  para 
graphs  dealing  with  this  assertion  that  the  people  of  the 
seceded  States  were  out  of  the  pale  of  law.2  So  far  as  I 
know,  these  paragraphs  constituted  the  only  answer  that  he 
made  publicly  to  the  criticisms  with  which  his  pamphlet 
was  received. 

The  strictures  and  commendations  of  the  public  press 
with  which  this  pamphlet  was  received  in  different  quar 
ters  of  the  country  were  voluminous.  But  expressions  of 
the  feelings  and  opinions  of  persons  who  stood  aloof  from 
the  press  and  its  various  influences  are  now  more  valuable, 
because  they  came  from  more  impartial  sources.  From  the 
letters  that  lie  before  me  I  select  two,  that  emanated  from 
that  unbiassed  observation  of  public  affairs  which  private 
station  and  high  intelligence  are  best  calculated  to  produce. 
The  writer  of  one  was  Dr.  James  Jackson,  who  was  perhaps 
the  acknowledged  head  of  the  medical  profession  in  New 
England  for  a  long  period,  and  who,  in  every  thing  that 
related  to  the  public  weal,  was  a  man  of  singular  wis 
dom.  The  writer  of  the  other  was  a  gentleman  of  great 
eminence  at  the  Boston  Bar,  who  still  adorns  it,  at  an 
advanced  age,  but  in  undiminished  activity,  who  had  led 
and  still  leads  only  the  life  of  a  distinguished  lawyer,  and 
who  expressed,  in  a  very  terse  and  perspicuous  manner, 
the  appropriate  answer  to  a  criticism  which  appeared  in 
the  London  Times. 

1  See  a  communication,  signed  by  the  Hon.  Theophilus  Parsons,  printed 
in  the  Boston  Daily  Advertiser,  October  24,  1862. 

2  The  second  edition  is  the  one  reprinted  infra,  Vol.  II.     The  new  para 
graph?  are  enclosed  in  brackets. 


1862.]  EXECUTIVE   POWER.  357 


DR.  JACKSON  TO  MR.  TICKNOR. 

October  20,  1862. 

MY  DEAR  MR.  TICKNOR,  —  Let  me  thank  you  for  sending  me 
Judge  Curtis's  pamphlet  on  Executive  Power.  I  thank  you  very 
much  for  it.  I  received  it  last  evening,  and  my  son  then  read  it  to 
me.  This  morning  I  have  read  it  myself.  I  cannot  tell  you  how 
much  I  have  been  gratified  by  the  perusal.  Many  of  us  thought 
that  the  President  had  taken  liberties  with  the  law,  which  he  had 
not  any  right  to  take,  within  the  last  eighteen  months.  But  most 
persons  having  these  thoughts  have  probably  felt,  as  I  have,  a  reluc 
tance  to  complain,  because  we  were  aware  of  the  very  embarrass 
ing  and  very  great  difficulties  under  which  this  officer  was  placed 
upon  coming  into  office,  and  at  the  same  time  had  thought  he  was 
truly  seeking  the  best  welfare  of  the  country,  and  that  he  had  not 
any  wish  to  arrogate  any  powers  not  belonging  to  him.  To  me, 
certainly,  the  arrest  and  imprisonment  of  citizens  by  military 
power,  without  even  stating  the  causes  for  such  arrests,  have 
appeared  unjustifiable  and  alarming.  But  the  late  Proclamations, 
as  they  took  broader  grounds,  have  appeared  still  more  so.  Had 
the  President  been  thought  to  have  been  prompted  by  personal 
ambition,  and  to  have  harbored  any  improper  desires,  I  think  that 
through  our  newspapers  arid  in  other  ways  loud  complaints  would 
have  been  made  many  months  ago.  But  since  the  22d  of  Septem 
ber,  the  fear  of  evil  could  not  be  restrained,  and  it  has  been  evi 
dent  that  an  opposition  would  be  made  to  the  course  adopted  by 
the  commander-in-chief.  In  this  state  of  affairs,  there  is  great  rea 
son  for  rejoicing  that  Judge  Curtis  has  given  us  this  pamphlet. 
So  far  as  I  know,  there  is  not  any  of  our  distinguished  jurists  and 
statesmen  to  whom  our  public  would  listen  more  readily  than  to 
him, — none  more  fitted,  in  the  general  estimation,  for  the  task. 
This  task,  so  far  as  I  can  judge,  he  has  performed  with  the  great 
est  skill  and  success.  He  has  arranged  in  the  most  lucid  manner 
the  points  to  be  considered,  he  has  stated  all  that  can  be  said  in 
the  most  logical  manner ;  and  he  has  done  this  with  what  may  be 
called  true  eloquence,  if  I  may  use  that  word  in  reference  to  what 
is  written.  He  has  thrown  his  own  feelings  into  the  discussion, 
and  must  warm  others  by  the  warmth  which  he  shows  in  regard  to 
the  common  welfare.  In  so  doing,  so  far  from  seeking  to  find 
fault  with  the  President,  or  seeking  to  alienate  his  fellow-citizens 


358  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1862. 

from  him,  he  has  manifested  toward  him  the  kindest  feelings,  and  a 
confidence  in  his  honesty  and  integrity,  which,  I  believe,  is  enter 
tained  by  the  great  mass  of  our  people.  He  has  not  written  a 
word  of  which  Mr.  Lincoln  or  his  friends  can  complain,  while  he 
has  not  been  restrained  from  describing,  in  the  most  distinct  and 
fearless  manner,  the  objections  which  can  be  made  to  the  course  of 
conduct  under  consideration. 

I  sat  down  to  write  you  a  short  note,  —  and  here  I  am.  Per 
haps  my  writing  is  so  bad  that  you  have  not  got  here,  where  I  am. 
Let  me  add  a  hope  and  wish.  From  the  title-page  I  have  a  sus 
picion  that  the  pamphlet  is  not  [yet]  published.  But  it  must  be 
spread  abroad  very  freely.  It  should  reach  every  man  who  can 
understand  it.  I  should  like  to  hear  that  a  million  of  copies  were 
printed.  Possibly  it  would  be  best  to  have  it  printed  in  half  a 
dozen  newspapers  of  extensive  circulation.  .  .  . 

As  I  trust  you  will  read  the  end  of  my  note,  I  here  beg  your 
pardon  for  such  a  hurried  and  loose  paper,  —  and,  with  new  thanks, 
assure  you  of  my  great  regard  for  you. 

J.  JACKSON. 


SIDNEY  BARTLETT,  ESQ.  TO  MR.  TICKNOR. 

Friday  Evening,  Nov.  29,  1862. 

DEAR  MR.  TICKNOR,  —  I  return  the  letter  of  Sir  Edmund 
Head,  and  the  Times,  with  my  thanks.  The  Times  article  is  wil 
fully  perverse.  The  writer  could  not  read  the  Judge's  pamphlet 
and  fail  to  see  that  it  is  wholly  based  on  this  proposition,  —  that 
this  government  is  dealing  with  a  rebellion,  and  not  with  an  alien 
enemy  ;  that,  in  dealing  with  such  rebellion,  it  has  at  all  times 
professed  to  be  governed  by  a  written  Constitution,  the  provisions 
of  which  it  holds  to  be  constantly  applicable  to  the  several  States 
where  such  rebellion  has  sway ;  and  that  -  the  purpose  of  the  pam 
phlet  is  to  show  that,  professing,  as  the  Executive  does,  to  be  governed 
by  that  Constitution,  its  restraints  have  ignorantly,  or  by  a  gross 
misconstruction,  been  wholly  disregarded.  The  whole  article  in 
the  Times  wilfully  ignores  what  constitutes  the  fundamental  propo 
sition  on  which  the  pamphlet  rests,  and,  though  smart,  is  shaped  to 
other  issues  thnn  those  raised  by  the  Judge.  Pardon  me  for  adher 
ing  to  my  original  view,  that,  for  those  who  have  thought  enough 
to  comprehend  the  pamphlet,  an  essay  to  show  that  in  a  rebellion 


1862.]  EXECUTIVE   POWER.  359 

rebels  have  rights  is  superfluous,  and  that  it  would  require  an  essay 
of  a  different  character,  and  one  of  larger  proportions^  to  deal  with 
the  weaker  popular  delusion  as  to  the  effect  of  the  struggle  upon 
our  rights  and  duties.  Yours  faithfully, 

S.  BARTLETT. 

Any  one  who  shall  now  carefully  read  this  production, 
"  Executive  Power,"  will  notice  how  sedulously  the  writer 
abstained  from  questioning  the  motives  of  these  executive 
acts,  and  how  respectfully  he  treated  the  President  and  his 
Secretary  of  War ;  directing  his  arguments  and  comments 
solely  to  the  constitutional  and  legal  questions.  There  was 
great  merit  and  great  charity  in  the  adoption  of  this  tone  ; 
for,  in  all  the  directness  with  which  the  writer  judged  the 
conduct  of  the  Administration  in  reference  to  its  consti 
tutional  powers  and  duties,  he  did  not  charge,  as  many 
of  the  political  opponents  of  the  Administration  did,  that, 
while  the  executive  department  wras  prosecuting  the  war, 
it  was  at  the  same  time  aiming  to  control  the  elections 
everywhere  in  the  North,  and  thus  to  preserve  the  party 
supremacy  which  was  both  affirmed  and  denied  to  be  essen 
tial  to  the  successful  termination  of  the  great  struggle. 
The  Emancipation  Proclamation  was,  according  to  the 
prevailing  belief  among  the  Democrats,  conceded  to  those 
who  demanded  it,  because  it  was  supposed  that  it  would 
gain  more  votes  than  it  would  lose.  In  the  same  way,  it 
was  charged  that  the  Proclamation  which  suspended  the 
habeas  corpus  as  to  all  persons  confined  by  military  author 
ity,  and  the  orders  of  the  Secretary  of  War  establishing  a 
military  police  for  the  arrest  of  "  all  disloyal  persons  subject 
to  arrest,  under  the  orders  of  the  War  Department,  .  .  . 
and  to  perform  such  other  duties  as  may  be  enjoined  upon 
them  by  the  War  Department,"  were  designed  as  much  to 
intimidate  citizens  inclined  to  write,  speak,  or  vote  against 
the  party  in  power,  as  they  were  to  prevent  actual  aid  from 
being  given  to  the  enemy  in  the  field.  It  was  said  that  the 
motive  of  these  measures  was  largely  political ;  and  that, 


360  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [1862. 

while  Mr.  Lincoln's  government  was  fighting  Southern 
armies  in  the  field,  it  constantly  had  its  eye  and  its  hand  on 
the  elections  in  the  North.  Yet  in  his  public  criticism  of 
"  the  late  desperately  bad  measures,"  as  he  characterized 
them  in  a  private  letter,  Judge  Curtis  omitted  all  reference 
to  the  complaint  that  the  Administration  shaped  its  meas 
ures  as  the  head  of  a  party  quite  as  much  as  for  military 
purposes.  In  fact,  the  pamphlet  had  no  party  character  or 
purpose. 

One  of  the  most  elaborate,  and  from  the  writer's  prem 
ises  most  consistent,  of  the  many  answers  to  Judge  Curtis's 
pamphlet  was  made  by  the  London  Times,  in  an  article 
filling  more  than  two  of  its  editorial  columns,  in  its  issue  of 
November  13,  1862. l  It  is  to  be  remembered  that,  at  this 
period,  nearly  the  whole  force  of  British  opinion  leaned 
strongly  in  support  of  the  position  that  the  Southern  Con 
federated  States  were  no  longer  a  component  part  of  the 
United  States,  but  that  they  were  "  a  foreign  power  to  the 
North."  The  adoption  of  this  view  by  the  public  men  and 
the  writers  of  Great  Britain  who  embraced  it,  and  its  gen 
eral  acceptance  by  the  governing  classes  of  that  country, 
with  here  and  there  a  notable  exception,  had  almost  the 
effect  that  might  have  followed  an  actual  intervention  to 
bring  about  the  final  and  practical  result,  which  was  as 
sumed  to  be  the  existing  state  of  things.  It  is  needless 
now  to  speculate  upon  the  causes  which  produced  this 
opinion  in  England.  All  that  I  am  concerned  at  present  to 
point  out  is,  that  the  postulates  of  a  complete  severance  of 

1  It  is  the  article  referred  to  supra,  in  Mr.  Bartlett's  note.  It  was  sent 
from  London  to  Mr.  Tieknor,  by  Sir  Edmund  Head,  accompanied  by  a  letter 
from  which  I  take  the  following  extract:  — 

"November  16,  1862. 

"I  send  you  by  this  mail  a  copy  of  the  Times,  with  a  notice  of  Judge  Curtis's 
pamphlet.  It  is  not  to  me  a  satisfactory  one  in  any  way.  As  a  matter  of  course, 
the  stand-point  of  the  Times  is  different  from  that  of  the  author,  and  so  likewise  is 
my  own.  But  I  scarcely  think  the  importance  of  the  matter  is  properly  estimated. 
I  gave  DeLane  the  pamphlet,  in  order  that  some  notice  might  he  taken  of  it;  but  I 
am  in  no  way  responsible  for  the  article." 


1862.]  EXECUTIVE  POWER.  361 

the  American  Union,  and  of  the  alien  character  of  the 
Southern  Confederacy,  lay  at  the  foundation  of  all  that 
this  able  writer  in  the  London  Times  had  to  urge  against 
Judge  Curtis's  views  of  the  nature  of  the  contest.  I  am 
not  disposed  to  insist,  although  I  have  remarked  it  for  more 
than  thirty  years,  that  Englishmen,  probably  in  conse 
quence  of  the  difference  between  an  unwritten  and  a  writ 
ten  Constitution,  have  generally  been  peculiarly  liable  to 
adopt  views  of  the  American  Union  in  which  very  few 
Americans  would  concur.  Doubtless  there  was  a  radical 
difference  of  opinion  between  the  North  and  the  South,  re 
specting  the  right  of  State  secession  from  the  Union  as 
resulting  from  the  nature  of  our  Constitution ;  and  it  is 
equally  true  that,  after  this  supposed  right  had  undergone 
theoretical  discussion  in  every  possible  form,  and  because 
there  was  no  peaceable  solution  of  it  provided  for  in  the 
Constitution  itself,  and  as  the  claim  would  not  be  surren 
dered  by  the  people  of  the  Southern  States,  the  practical 
assertion  of  the  supposed  right  became  a  question  of  physi 
cal  force  between  the  established  government  of  the  United 
States  and  the  people  of  the  South.  In  this  posture  of 
things,  the  real  question  for  the  government  of  the  United 
States,  which  denied  in  toto  the  existence  of  any  constitu 
tional  right  of  State  secession  from  the  Union  was,  whether 
it  could,  consistently  with  its  own  constitutional  position, 
adopt  the  dogma  that  the  Southern  Confederacy  was  an 
alien  enemy,  and  proceed  against  the  Confederated  States 
and  their  people  in  all  respects  as  alien  enemies  proceed 
against  each  other,  to  all  the  consequences  of  conquest  and 
subjugation.  By  all  theories  theretofore  maintained  by 
publicists,  and  accepted  by  the  most  enlightened  nations,  a 
constitutional  government  which  is  obliged  to  wage  a  civil 
war  in  assertion  of  its  lawful  authority  over  its  revolted 
citizens,  may  treat  the  military  power  of  the  insurgents,  for 
the  time  being,  as  a  belligerent,  and  accord  to  it  the  rights 
and  usages  of  civilized  war.  This  is  a  principle  which  has 


362  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1862. 

been  adopted  into  the  public  law  of  the  world,  in  order  to 
prevent  such  contests  from  degenerating  into  barbarous 
practices ;  and  because  it  is  a  principle  of  great  practical 
convenience  to  the  lawful  government,  which  is  obliged  to 
use  military  means  to  regain  its  lawful  authority  over  the 
territory  and  persons  comprehended  within  the  sphere  of 
the  insurrection.  But  between  this  temporary  and  limited 
concession  of  the  belligerent  character,  and  the  complete 
concession  of  the  character  and  position  of  an  alien  enemy, 
there  is  a  plain  distinction.  The  government  of  the  United 
States,  deriving  all  its  powers  from  a  written  Constitution, 
could  not,  consistently  with  its  claim  that  the  Southern 
people  were  "  rebels,"  proceed  to  treat  them  in  all  respects 
as  if  they  were  "  alien  enemies."  The  power  to  declare 
war,  which  the  Constitution  had  vested  in  Congress,  and 
the  power  to  carry  on  Avar  which  it  had  vested  in  the  Presi 
dent,  must  both  be  interpreted  by  the  nature  of  the  war 
that  is  at  any  time  undertaken.  A  war  against  an  alien 
enemy  cannot  be  a  civil  war,  prosecuted  for  the  recovery 
of  the  lawful  authority  of  a  constitutional  government. 
A  people  cannot  be  at  the  same  time  alien  enemies  to  a 
government  and  rebels  against  the  lawful  authority  of  that 
government ;  and  although,  when  they  are  the  latter,  they 
may  be  conceded  to  be  belligerents,  in  a  limited  sense,  until 
the  contest  is  ended,  that  concession  in  no  way  involves  the 
consequence  that  they  are  alien  enemies,  either  during  the 
contest  or  after  it  has  terminated  in  the  success  of  the  legiti 
mate  government. 

The  writer  in  the  London  Times  based  all  his  argu 
ments  against  the  views  of  Judge  Curtis  upon  the  assump 
tion  that  the  Southern  Confederacy  and  the  people  of  the 
Southern  States  were  an  alien  enemy  to  the  government  of 
the  United  States.  Reasoning  from  the  position  that  the 
war  was  a  foreign  war,  he  maintained,  in  reference  to  Mr. 
Lincoln's  Emancipation  Proclamation,  that  in  a  foreign  war 
the  commander-in-chief  can  threaten  the  enemy  with  any 


1862.]  EXECUTIVE   POWEK.  863 

thing  that  he  believes  will  annoy  or  weaken  him.  In  the 
same  way,  he  maintained  that  the  fallacy  of  Judge  Curtis's 
objections  that  by  the  other  Proclamation  the  President  had 
undertaken  to  create  offences  unknown  to  the  laws  of  the 
United  States  —  such  as  discouragement  of  enlistments,  the 
resistance  to  drafts,  and  other  disloyal  practices  —  lay  latent 
in  the  assumption  that  the  laws  of  the  United  States  are  to 
be  applied  to  a  foreign  war.  "  In  vain,"  he  said,  "  Judge 
Curtis  attempts  to  reconcile  the  uses  of  martial  law  with 
the  principles  of  the  Constitution.  When  the  Executive 
has  suspended  habeas  corpus,  quoad  Executive,  in  respect  to 
certain  classes,  he  comes  in  as  commander-in-chief,  and  deals 
with  these  classes  as  military  chief.  The  whole  of  the  acts 
of  the  President,  in  letter  and  spirit,  are  referable  to  and 
excusable  upon  one  ground  alone,  —  that  which  the  Demo 
crats  will  not  adopt,  and  which  the  Republicans  are  not 
bold  enough  openly  to  stand  upon,  —  that  the  States  of  the 
South  are  an  alien  enemy,  and  that  those  citizens  in  the 
jurisdiction  of  the  [United]  States  who  aid  and  abet  them 
are  amenable  to  the  customs  and  usages  of  all  governments 
towards  treasonable  subjects.  Thus  considered,  Mr.  Lin 
coln  becomes  a  despot,  ruling  a  prostrate  people,  who,  in 
time  of  war,  to  gratify  their  lust  of  conquest,  have  given 
up  every  vestige  of  liberty,  and  cannot  save  their  enemies 
from  the  measure  they  have  accepted  for  themselves.  The 
most  curious  fact,  perhaps,  in  connection  with  this  result  of 
majority  doctrines,  is  the  perfect  submission  of  the  whole 
people  of  the  Northern  States  to  decrees  which  have  been 
stigmatized  as  illegal  in  the  last  degree  ;  that  the  army  of 
intelligent  citizens  have  yielded  to  them  :  that  the  generals, 
the  most  powerful  of  whom  are  Democrats,  have  never 
dreamt  of  opposing  them.  It  must  be  that  they  feel  that 
the  Confederate  States  have  become  an  independent  nation, 
and  are  now  an  alien  enemy." 

It  is  a  remarkable  coincidence,  that  this  opinion  of  a 
British  N\  riter,  put  forth  for  an  obvious  purpose,  fell  in  with 


364  MEMOIR   OF  BENJAMIN  BOBBINS   CUKTIS.  [1862. 

views  which  were  maintained  in  this  country.  There  was 
a  large  body  of  opinion  in  the  Northern  States  which 
regarded  the  war  as  a  war  for  conquest  and  subjugation,  or 
wished  to  make  it  one ;  so  that  the  Southern  States  might, 
as  States  of  the  Union,  be  obliterated,  and  be  reduced  to 
the  condition  of  Territories,  —  the  property  of  the  United 
States.  Practically,  this  opinion  concurred  in  the  dogma 
of  the  foreign  writer,  that  the  war  was,  to  all  intents  and 
purposes,  a  foreign  war ;  and  thus,  while  the  foreigner 
wished  to  produce  the  belief  that  the  American  Union  was 
legally  dissevered,  the  domestic  press  to  a  large  extent,  and 
a  considerable  party  in  the  North,  called  loudly  for  an  un 
limited  prosecution  of  the  war,  and  a  suppression  of  the 
political  existence  of  the  Southern  States. 

It  was  the  purpose  of  Judge  Curtis  to  show  that  this  was 
not  a  foreign  war,  with  the  rights  and  powers  which  one 
alien  enemy  can  exert  against  another.  He  wished  to  save 
the  government  and  people  of  the  United  States  from  the 
deplorable  consequences  of  having  on  their  hands  a  great 
collection  of  conquered  provinces,  subjugated  as  an  alien 
enemy  is  subjugated  by  a  triumphant  foe.  He  saw  with 
perfect  distinctness,  that,  when  the  line  which  separates  a 
foreign  war  and  all  its  incidents  from  a  civil  war,  that  is 
waged  for  the  recovery  of  the  lawful  authority  of  a  constitu 
tional  government,  was  once  crossed,  the  Constitution  of  the 
United  States  could  not  be  saved,  either  for  the  North  or 
the  South.  He  looked  forward  to  the  time  when,  the  mili 
tary  power  of  the  Southern  Confederacy  being  broken  and 
dispersed,  the  Constitution  could  resume  its  peaceful  sway 
over  the  people  of  the  South,  and  they  could  be  restored  to 
their  proper  participation  in  its  working,  —  a  time  which 
he  felt  well  assured  could  never  come  if  the  Executive  were 
to  assume  and  exercise  powers  derived  from  the  assumption 
that  he  was  bound,  in  prosecuting  the  war,  by  no  restraints 
of  the  fundamental  law  of  his  country,  and  could  do  any 
thing  that  a  commanding  general  may  do  against  an  alien 


1862.]  EXECUTIVE   POWER.  365 

enemy.  The  assertion  that  Judge  Curtis  was  unable  to 
reconcile  the  uses  of  martial  law  with  the  principles  of  the 
Constitution,  was  a  mere  begging  of  the  question.  His 
English  and  his  American  critics  should  have  both  attended 
to  his  distinctions  between  military  law  and  martial  law  ; 
and  they  should  have  answered,  if  they  could,  his  limitation 
of  the  latter  to  the  sphere  of  actual  operations  in  the  field. 
They  should  not  have  assumed  that  the  President  could  ex 
tend  martial  law  over  the  whole  country  and  all  its  citizens, 
and  then  have  jumped  to  the  conclusion  that  the  uses  of 
martial  law  and  the  principles  of  the  Constitution  were 
irreconcilable.  They  should  have  begun  with  the  admis 
sion  that  the  Constitution  did  not  allow  of  the  application 
of  martial  law  to  all  the  citizens  of  the  Union,  and  then 
have  inquired  how,  when,  and  over  whom,  martial  law  can 
ever  be  exercised  in  this  country. 

There  was  yet  another  aspect  of  this  very  important  sub 
ject  on  which  Judge  Curtis  was  at  variance  with  his  critics, 
which  he  saw,  and  which  they,  apparently,  did  not  see. 
"  Judge  Curtis's  argument,"  said  Professor  Parsons,  "would 
give  the  Constitution  and  the  law  to  the  rebels  as  their 
sword  to  smite  with  and  their  shield  to  save  them,  and  leave 
it  to  us  only  as  a  fetter."  1  If  the  people  of  the  Southern 
States,  while  the  President  was  seeking  to  suppress  what 
he  and  the  great  mass  of  his  fellow-citizens  of  the  North 
professed  to  regard  as  a  rebellion,  were  to  understand  that 
they  were  waging  a  foreign  war,  one  which  had  been  made 
such  by  the  will  of  the  Executive  of  the  United  States,  with 
the  assent  of  all  the  people  of  the  North,  —  one  which  must 
be  prosecuted  to  the  end  of  conquest  by  one  party  or  the 
other,  —  or,  in  other  words,  if  the  people  of  the  South  were 
to  understand  that  the  Constitution  and  laws  of  the  United 
States,  the  supremacy  of  which  over  all  opposing  force  was 
the  great  professed  object  of  all  Federal  hostility,  afforded  no 
rule  for  the  action  of  the  Federal  government,  —  then  they 
1  Boston  Daily  Advertiser,  October  24,  1862. 


366  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [18Q5 

were  under  the  most  powerful  motives  for  resistance  that 
could  ever  animate  a  people.  Then  they  were  to  fight  pro 
aris  et  focis;  and  the  result  must  inevitably  be,  if  they 
were  beaten,  that  they  were  out  of  the  pale  of  the  Union. 
What,  then,  in  such  an  event,  would  have  been  our 
condition  ?  With  the  Constitution  abrogated,  and  with  a 
whole  group  of  States  subjugated  by  military  power,  what 
rule,  what  authority,  what  source  of  power  but  an  absolute 
despotism,  would  have  remained  for  the  government  of  the 
conquered  or  the  conquerors?1 

In  a  copy  of  the  pamphlet,  "  Executive  Power,"  pre 
sented  by  Judge  Curtis,  soon  after  its  publication,  to  a 
gentleman  still  living,  and  in  whose  possession  it  remains, 
the  following  note  in  Judge  Curtis's  handwriting  appears, 
referring  to  the  President's  Proclamation  which  suspended 
the  writ  of  habeas  corpus,  and  subjected  persons  guilty  of 
certain  offences  to  martial  law,  and  trial  and  punishment 
by  military  tribunals  :  — 

NOTE.  —  I  understand  that  the  Proclamation  of  President  Lin 
coln,  a  copy  of  which  is  on  the  sixth  page,  cannot  be  obtained  on 
application  to  the  Department  of  State.  I  have  not  myself  made 
the  application,  and  the  person  who  had  so  informs  me.  All  procla 
mations  of  the  President  are  required  to  be  published  in  Little 
and  Brown's  edition  of  the  Acts  of  Congress,  &c.  This  one  is  not 
so  published.  That  it  was  issued  there  can  be  no  doubt.  I  took  it 
from  the  "  Intelligencer,"  which  printed  it  at  Washington  on  the 
day  it  was  made  public.  Having  been  issued,  I  arn  sorry  any 
attempts  have  been  made  to  suppress  it.2 

B.  R.  C. 

1  One  evening,  at  a  party  in  Washington,  after  Mr.  Stanton  was  out  of 
office,  he  came  up  to  Judge  Curtis,  and,  holding  out  his  hand,  said,  "  Judge, 
now  that  I  have  ceased  imprisoning  my  fellow-citizens  without  due  process 
of  law,  will  you  shake  hands  with  me  ?  "     My  brother  did  not  like  banter  on 
such  a  subject,  but  nevertheless  he  shook  hands  with  Mr.  Stanton.     Their 
intimacy,  however,  I  think  was  never  renewed. 

2  The  facts  appear  to  be  these.     The  Proclamation  referred  to  was  not 
published,  as  it  should  have  been,  (if  filed  in  the  State  Department,)  in  the 
12th  volume  of  the  Statutes  at  Large,  along  with  the  other  Proclamations 
of  1862.     It  did  not  make  its  appearance  until  the  13th  volume  was  pub- 


1865.]  APPOINTED   UMPIRE    UNDER   A   TREATY.  367 

In  the  early  part  of  the  year  1865,  Judge  Curtis  was 
selected  as  umpire,  under  a  treaty  between  the  British  and 
the  American  governments.  This  selection  of  a  private 
individual,  and  a  citizen  of  one  of  the  contracting  countries, 
for  such  a  duty,  was  so  creditable  to  the  British  authorities, 
and  so  honorable  to  the  person  named,  that  I  think  it  worthy 
of  explanation. 

On  the  1st  of  July,  1863,  a  treaty  was  concluded  be 
tween  the  two  governments,  for  the  final  settlement  of  the 
claims  of  the  Hudson's  Bay  and  Puget  Sound  Agricultural 
Companies.  These  claims  had  arisen  under  the  treaty  of 
June  15,  1846,  commonly  called  the  Treaty  of  Oregon  ;  by 
which  the  landed  possessions  of  these  two  companies,  and 
of  all  other  subjects  of  Great  Britain  within  certain  limits, 
might,  under  certain  circumstances,  become  the  property 
of  the  United  States,  at  a  valuation  in  money  to  be  agreed 
upon  between  the  parties.  It  was  now  agreed  by  the 
treaty  of  July  1,  1863,  that  the  settlement  of  all  questions 
relating  to  these  claims  should  be  referred  to  two  commis 
sioners,  one  of  whom  was  to  be  appointed  by  each  govern 
ment  ;  and  that,  if  they  could  not  agree  on  an  umpire, 
whose  decision  was  by  the  treaty  to  govern  in  case  of  their 
differing  upon  any  of  the  claims  or  questions,  the  umpire 
should  be  appointed  by  the  King  of  Italy.  The  commis 
sioners  appointed  under  the  treaty  were  Mr.  Rose  of  Mon 
treal  (now  Sir  John  Rose),  on  the  part  of  Great  Britain, 
and  the  late  Judge  Alexander  S.  Johnson,  of  Utica,  in  the 
State  of  New  York,  on  the  part  of  the  United  States.  Sir 
Edmund  Head,  who  had  been  Governor- General  of  Can 
ada  from  1854  to  1860,  had,  after  his  return  to  England, 
accepted  the  position  of  Governor  of  the  Hudson's  Bay 
Company.  Being  an  intimate  friend  and  correspondent 

lished,  which  was  in  1866.  Whether,  in  this  interval  of  four  years,  there 
was  an  original  on  file  in  the  Department  of  State,  would  seem  to  be  doubt 
ful.  Judge  Curtis's  manuscript  note  in  reference  to  it  was  written  after  the 
publication  of  the  12th  volume  of  the  Statutes,  which  was  in  1862. 


368  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1865. 

of  Mr.  Ticknor,  and  well  acquainted  with  Judge  Curtis,  he 
wrote  to  the  former  gentleman  as  follows :  — 

SIR  E.  HEAD  TO  MR.  TICKNOR. 

HUDSON'S  BAY  HOUSE,  FENCHURCH  STREET 

LONDON,  Feb.  27,  1865. 

MY  DEAR  TICKNOR,  —  In  July,  1863,  there  was  a  convention 
between  the  British  and  United  States  governments,  for  the  settle 
ment,  by  commissioners,  of  the  long  standing  claims  of  the  Hud 
son's  Bay  and  Puget  Sound  Companies  (under  the  Treaty  of 
Oregon).  The  commissioners  (Mr.  Rose  of  Montreal  and  Judge 
Johnson)  have  met,  and  they  will  have  to  name  an  umpire.  If 
none  is  named  by  government,  the  case  goes  to  the  king  of  Italy.1 
Well,  the  Foreign  Office  here  have  asked  me,  as  Governor  of  the 
Hudson's  Bay  Company,  if  I  could  suggest  any  name.  I  have  not 
hesitated,  with  the  consent  of  my  colleagues  in  the  committee  here, 
to  say,  that  we  would  feel  quite  satisfied  if  the  final  adjudication  of 
the  claims  were  left  to  Judge  Curtis  as  umpire.  We  believe  that 
it  would  be  impossible  to  find  a  more  honorable  or  more  competent 
person.  I  think  Lord  Russell  will  probably  write  out  to  this 
effect,  and  E  scarcely  see  how  the  American  commissioner  can 
object  to  Judge  Curtis,  if  Rose  proposes  him.  My  chief  fear  is, 
lest  he  should  decline  to  accept  the  office ;  but  I  hope,  at  any  rate, 
he  will  feel  that  his  ability  and  integrity  are  fully  and  completely 
recognized  in  London.  I  shall  be  truly  sorry,  if  it  is  offered  and 
refused.  Yours  sincerely, 

EDMUND  HEAD. 

To  MR.  TICKNOR. 

Sunday,  P.  M. 

DEAR  UNCLE,  —  I  came  home  from  Hartford  with  a  hoarse 
cold,  which  it  is  highly  expedient  I  should  get  rid  of,  as  I  have 

1  There  was  apparently  a  slight  inaccuracy  in  this.  The  treaty  required 
that,  if  the  commissioners  did  not  agree  on  an  umpire,  he  was  to  be  named 
by  the  King  of  Italy.  This  inaccuracy,  however,  is  not  material  to  the 
point  for  which  Sir  E.  Head's  letter  is  here  quoted,  namely,  that  an  inde 
pendent,  if  not  the  first,  suggestion  of  the  name  of  Judge  Curtis  came  from 
England.  Sir  Edmund  meant,  in  substance,  that  if  the  British  government 
did  not  instruct  Mr.  Rose  whom  to  suggest  or  agree  to,  there  would  he  a 
practical  disagreement  between  the  Commissioners,  and  the  appointment 
would  have  to  be  made  by  the  King  of  Italy. 


1865.]  DEATH   OF    HIS   MOTHER.  369 

two  causes  to  argue  this  week ;  so  I  have  stayed  in  to-day,  and  do 
not  like  to  go  out,  as  your  note  invites  me  to  do. 

I  should  desire  you  to  make  my  acknowledgments  to  Sir  Ed 
mund  for  the  kind  expressions  contained  in  his  letter,  and  indeed 
for  thinking  of  me  at  all  for  such  a  duty,  were  it  not  that,  in  a 
matter  so  purely  judicial,  it  is  better  for  me  to  have  no  such  in 
tercourse  with  either  side.  You  will  therefore  please  say  to  Sir 
Edmund,  that  you  read  his  letter  to  me,  and  that  there  is  nothing 
in  the  character  of  the  office,  or  in  my  own  engagements,  which 
would  prevent  me  from  assuming  its  duties,  if  it  should  be  the  wish 
of  both  governments  that  I  should  do  so. 

I  was  very  unwillingly  deprived  of  the  dinner  on  Friday,  but  I 
could  not  reach  Boston  in  season. 

Yours  always,  B.  R.  CURTIS. 

So  far  from  there  being  any  objection  to  Judge  Curtis 
on  the  part  of  the  American  commissioner,  I  am  inclined 
to  believe  that  Judge  Johnson  himself  had  thought  of  Judge 
Curtis,  previously  to  the  proposal  of  his  name  by  Mr.  Rose, 
and  that,  when  they  again  met,  each  of  them  found  that 
the  other  was  prepared  to  name  the  same  person.1  Judge 
Curtis  was  never  called  upon  to  act  under  this  appoint 
ment,  as  the  commissioners  agreed  upon  the  award  which 
they  were  required  to  make. 

In  the  autumn  of  1865,  my  mother,  then  nearly  eighty 
years  of  age,  met  with  an  accident  which  seemed  likely  to 
prove  fatal.  She  recovered  from  its  immediate  effects,  but 
died  tranquilly  on  the  7th  of  February,  1866,  in  full  posses 
sion  of  all  her  faculties  and  affections. 

To  GEORGE  T.  CURTIS. 

Wednesday,  Nov.  20,  1865. 

DEAR  BROTHER,  —  I  have  been  absent  at  Providence  all  day, 
and  shall  be  there  to-morrow  and  cannot  see  mother  again  till 

1  Judge  Johnson  informed  me,  shortly  before  his  death,  that  he  suggested 
the  name  of  Judge  Curtis  to  Mr.  Rose,  and  he  seemed  to  claim  the  merit  of 
the  selection  as  belonging  originally  to  himself.  The  probability  is,  that 
there  was  a  coincidence  of  separate  and  independent  preferences  for  the  same 
person. 

VOL.  i.  24 


370  MEMOIR    OF   BENJAMIN   BOBBINS    CTJKTIS.  [1866. 

Wednesday.  The  account  I  have,  and  this  corresponds  with  ray 
own  observation,  is  that  when  not  excited  she  sleeps  a  great  deal  ; 
and  the  nurse,  who  is  skilful  and  observing,  thinks  she  may  drop 
away  at  any  time.  But  I  have  no  doubt  she  has  much  vitality  and 
that,  without  a  sudden  shock,  which  of  course  may  come  at  any 
moment,  she  will  live  through  her  present  state.  I  wish  to  give 
you  exactly  my  own  appreciation  of  her  condition,  and  it  is  this. 

The  shock  she  has  received  may  be  such  that  her  nervous  sys 
tem  will  sink  under  it.  In  that  case  she  will  die,  probably  quietly 
and  without  suffering ;  and  the  present  indications  are  that  this 
would  be  the  result  with  one  of  less  vital  power.  I  doubt  if  it 
will  be  so  with  her,  for  she  has  a  great  deal. 

My  own  house  has  been  little  better  than  a  hospital.  .  .  .  For 
myself,  I  have  been  much  pressed  by  courts  and  juries,  but  I  shall 
wind  them  all  up  to-morrow,  and  have  some  rest.  I  have  kept  well 
and  about,  —  the  same  as  always.  Give  my  love  to  your  wife. 

Yours  always,  B.  R.  CURTIS. 

To  MR.  TICKNOR. 

32  HANCOCK  ST.,  Feb.  8,  1866. 

MY  DEAR  UNCLE,  —  I  thank  you  for  your  note.  I  should 
have  come  to  your  house  this  morning,  if  my  exposure  last  night 
had  not  given  me  a  cold  which  made  it  necessary  for  me  to  keep 
in  doors  to-day. 

You  say  well,  that,  when  one  has  come  to  the  end  of  a  great 
duty,  it  is  a  time  to  look  back  and  see  how  it  has  been  done. 

Though  I  have  performed  neither  this  nor  any  other  duty  so 
well  as  I  ought,  I  have  tried  for  forty  years  to  do  what  my  mother 
would  permit  me  to  do  for  her;  and  I  have  the  satisfaction  of 
believing  that  she  did  not  think  me  wanting  in  my  duty  to  her. 

Though  she  had  to  the  last  half-hour  of  her  life  the  same  ener- 

O 

getic  purpose  to  do  what  her  physician  judged  best,  which  was 
characteristic  of  her,  yet  she  wished  to  be  at  rest.  Now  she  is  at 
rest.  Affectionately  yours, 

4  B.  R.  CURTIS. 

To  THE  HON.  REVERDY  JOHNSON. 

BOSTON,  July  8,  1866. 

DEAR  MR.  JOHNSON,  —  I  read  the  report  of  your  argument  on 
the  Test  Oath,  on  my  journey  hither,  and  am  entirely  satisfied  of 


1866.]  OPINIONS   GIVEN   AT   THE   BAR.  371 

its  soundness,  and  certainly  it  is  put  with  great  clearness  and  force 
before  the  court. 

I  hope  for  the  right  result,  but,  in  the  present  condition  of  things, 
I  do  not  feel  sure  of  any  result  of  judicial  action,  where  political 
considerations  have,  or  may  have,  any  place.1 
With  great  regard,  I  am,  dear  Sir, 

Yours  faithfully, 

B.  R.  CURTIS. 

The  following  opinions  are  selected  from  a  great  number 
given  in  the  year  1866. 

FEDERAL  OR   STATE  JURISDICTION   OVER  TRUSTS.— 
INVESTMENTS   BY   TRUSTEES. 

OPINION. 

An  executor,  guardian,  or  trustee,  appointed  by  a  court  of  a 
particular  State,  is  subject  to  account  in  a  suit  in  equity,  instituted 
in  a  court  of  the  United  States,  between  citizens  of  different  States. 
That  the  trust  has  its  origin  in  the  action  of  a  State  court,  and  that 
the  trustee  is  amenable  to  its  jurisdiction,  will  not  exempt  him 
from  accountability  in  a  suit  in  equity  in  the  courts  of  the  United 
States.  But  a  trustee  who  has  derived  his  appointment  from  the 
act  of  a  State  court,  and  who  is  bound,  by  the  laws  under  which  he 
was  appointed,  to  account  in  the  court  which  appointed  him,  and 
who  either  has  there  accounted,  or  is  in  the  process  of  there  ac 
counting,  pursuant  to  the  laws  under  which  his  obligations  were 
created,  cannot  in  my  judgment  be  drawn  away  from  this  appro 
priate  State  tribunal,  and  forced  to  account  in  a  court  of  the 
United  States.  The  reasons  for  this  opinion  may  be  found  stated 

1  A  provision  inserted  in  the  Constitution  of  the  State  of  Missouri,  during 
the  civil  war,  required  priests  and  clergymen,  as  a  condition  of  being  allowed 
to  continue  to  exercise  their  profession,  and  to  preach  and  teach,  to  take  a 
prescribed  oath  that  they  had  not  committed  certain  designated  acts,  some  of 
which  were  at  the  time  offences  with  heavy  penalties  attached,  and  some  of 
which  were  at  the  time  acts  innocent  in  themselves.  The  Supreme  Court 
of  the  United  States,  in  accordance  with  the  arguments  of  Mr.  Johnson  and 
Mr.  David  Dudley  Field,  held  that  this  provision  constituted  both  a  bill  of 
attainder  and  an  ex  post  facto  law,  within  the  meaning  of  the  clauses  of  the 
Federal  Constitution  which  prohibit  the  States  from  passing  laws  of  that 
character.  (See  Cummings  v.  The  State  of  Missouri,  4  Wallace's  R.  277.) 


372  MEMOIR    OF    BENJAMIN   BOBBINS   CURTIS.  [1866. 

in  the  case  of  Mallet  v.  Dexter,  1  Curtis's  C.  C.  R.  178.  I  have  had 
frequent  occasions  to  reconsider  this  subject,  but  have  not  been 
able  to  arrive  at  any  conclusion  more  satisfactory  than  the  one 
therein  stated. 

The  case  states  that  the  investments  in  question  were  duly  re 
ported  by  the  trustee  to  the  Chancery  Court,  and  I  assume  these 
reports  were  part  of  the  proceedings  in  the  course  of  which  the 
trustee  had  been  appointed.  It  is  not  stated  whether  any  judicial 
action  was  taken  thereon,  —  whether  the  investments  were  approved 
and  sanctioned  by  the  court,  —  whether,  under  the  practice  of  the 
court,  such  reports,  not  objected  to,  are  deemed  to  be  sanctioned  by 
the  court. 

If  judicial  sanction  of  the  investments  was  obtained,  in  my 
opinion  their  propriety  cannot  now  be  questioned  in  the  suit 
brought  in  the  United  States  court,  or  in  any  other  court  ;  upon 
the  plain  principle,  that  the  trustee  has  actually  been  subjected  to 
a  judicial  accounting  in  a  tribunal  of  competent  jurisdiction,  where 
the  propriety  of  his  investments  has  been  finally  settled.  If  judi 
cial  sanction  of  the  investments  has  not  been  obtained,  I  am  strongly 
inclined  to  think  that  their  subject-matter  should  be  deemed  to  be 
so  far  in  progress  before  the  Court  of  Chancery  which  appointed  the 
trustee,  that  any  other  court  should  decline  to  interpose  and  assume 
jurisdiction  over  the  subject.  But  this  state  of  facts  would  present 
a  question  of  some  difficulty.  I  have  an  impression  that  Judge 
Giles  of  Maryland  has  had  this,  or  a  very  similar  question,  before 
him ;  and  that  he  gave  an  elaborate  opinion  on  it,  refusing  to  take 
jurisdiction.  A  copy  of  his  opinion  might  be  of  service. 

As  to  the  validity  of  the  State  laws,  my  opinion  is  that  they  pro 
tect  the  trustee.  I  will  state  briefly  the  grounds  of  that  opinion. 

I  think  the  following  positions  should  be  and  will  be  affirmed  by 
the  Supreme  Court  of  the  United  States. 

1.  The  State  of  Alabama  continued  to  exist  after  its  attempted 
secession    from    the    Union,    with   all   its    political    capacities    un 
impaired. 

2.  Its  officers  not  having  been  sworn  to  support  the  Constitu 
tion  of  the  United  States,  and  having  in  fact  used  the  powers  of 
the  State  to  make  war  on  the  United  States,  there  was  during  this 
war  no  such  government  of  the  State  as  can  be  recognized  by  the 
government  of  the  United  States,  in  either  of  its  departments,  as  a 
lawful  government.     But  it  was  a  government  de  facto  ;  and  those 


1866.]  OPINIONS   GIVEN   AT   THE   BAR.  373 

acts  of  the  State  which  would  have  been  de  jure,  if  the  officers  had 
been  sworn  to  support  the  Constitution  of  the  United  States,  were 
operative  and  binding  on  its  citizens  who  were  within  the  power  of 
the  State,  as  the  acts  of  a  government  de  facto. 

3.  The  nature  of  our  government  does  not  permit  the  United 
States  to  destroy  a  State,  or  acquire  its  territory  by  conquest.  It 
may  rightfully  subdue,  by  arms,  any  number  of  the  rebellious  peo 
ple  of  a  State.  But  when  the  authority  of  the  United  States  has 
been  fully  restored  by  arms,  the  State  remains ;  and  it  is  both  the 
right  and  the  duty  of  the  people  of  the  State  to  reconstitute  its 
government  so  that  it  will  be  in  harmony  with  the  Constitution  of 
the  United  States. 

The  question,  at  what  time  the  power  of  the  United  States  is  so 
restored  that  the  people  of  a  State,  whose  government  has  been 
used  to  make  war  on  the  United  States,  can  safely  be  called  to 
gether  to  reorganize  its  government,  is  purely  a  military  question, 
of  which  the  President  is  the  judge,  and  his  action  in  that  capacity 
is  binding  on  all  departments  of  the  government  of  the  United 
States. 

To  apply  these  principles  to  the  subjects  under  consideration. 

If  the  naked  question  were  presented,  whether  a  law  of  a  State 
enabling  trustees  to  invest  in  the  bonds  of  a  state  or  country  at 
war  with  the  United  States  would  be  a  valid  law,  I  should  appre 
hend  it  would  be  held  to  be  invalid  ;  not  because  of  any  mere 
principle  of  public  policy,  but  because  such  a  law  might  be  deemed 
in  conflict  with  the  law  of  the  United  States  declaring  war,  and  with 
the  rights  of  the  United  States  and  the  duties  of  its  citizens  arising 
from  a  state  of  war. 

How  far  the  very  peculiar  facts  of  this  case  would  influence 
or  control  the  decision,  if  this  case  rested  only  on  the  law  passed 
Nov.  9,  18G1,  I  do  not  find  it  easy  to  determine.  If  the  bonds 
were  not  taken  by  the  trustee  from  the  State,  but  were  purchased 
in  the  market,  there  is  certainly  much  force  in  the  reasoning  drawn 
from  Armstrong  v.  Toler,  1 1  Wheaton,  258,  and  that  class  of  cases 
in  favor  of  the  validity  of  the  trustee's  act.  But  I  have  not  thought 
it  needful  to  pursue  this  inquiry,  because  I  am  of  opinion  that  the 
Ordinance  of  the  Convention  and  the  subsequent  act  of  Feb.  22, 
1866,  are  sufficient  to  protect  the  trustee.  It  will  be  understood  from 
what  I  have  before  said,  that  I  consider  this  Convention  to  have  been 
the  lawful  possessors  of  all  the  sovereign  power  of  the  people  of 


374  MEMOIR    OF   BENJAMIN    BOBBINS    CUETIS.  [1866. 

Alabama,  and  this  Legislature  to  have  been  de  jure  in  the  exercise 
of  the  legislative  power  of  the  State  under  its  Constitution,  and 
therefore,  unless  it  can  be  shown  that  to  validate  the  acts  there 
tofore  done  by  this  trustee  is  in  conflict  with  the  Constitution  of 
the  United  States,  or  some  constitutional  law  of  the  United  States, 
his  acts  are  validated.  I  do  not  think  this  can  be  shown.  If  the 
original  transaction  were  a  purchase  of  bonds  from  the  State  or 
the  Confederate  States,  and  in  conflict  with  the  Constitution  and 
laws  of  the  United  States  because  it  gave  aid  to  the  war,  still  that 
transaction  was  wholly  completed  and  closed,  and  cannot  be  in  any 
manner  aifected  by  this  Ordinance  or  law,  and  it  was  a  matter  of 
perfect  indifference  whether  the  trustee  should  or  should  not  be 
held  accountable  to  his  cestui  que  trust  as  for  an  illegal  investment. 
This  principle  is  brought  out  with  great  force  by  Mr.  Justice 
Nelson  in  McBlait  v.  Gibbs,  17  Howard,  232,  and  I  think  it  fully 
supported  by  the  authorities. 

In  my  judgment  this  principle  ought  to  be  applied,  with  much 
liberality,  to  healing  acts  of  legislation  which  relate  wholly  to  past 
transactions,  are  without  political  significance  or  effect,  and  have 
for  their  sole  and  manifest  object  to  prevent  public  events  from 
working  private  injustice. 

If  it  be  conceded  that  the  investment  when  made  was  illegal, 
and  the  trustee  accountable,  it  was  within  the  power  of  the  State 
to  destroy  that  accountability  ;  and  I  am  not  able  to  see  how  the 
Constitution  of  the  United  States,  or  any  law  of  the  United  States, 
required  this  legal  accountability  to  be  preserved. 

It  is  not  an  objection  that  the  law  is  retroactive,  and  takes  away 
an  existing  right,  which  does  not  arise  from  any  contract.  I 
attach  importance  also  to  the  character  and  the  nature  of  the  act 
in  question.  The  Legislature,  as  representing  the  parens  patriot, 
may  do  many  acts  for  the  protection  of  the  rights  of  minors  and 
of  their  guardians  or  trustees,  which  would  not  be  generally  admis 
sible,  and  I  can  perceive  nothing  inconsistent  with  sound  principles 
of  legislation,  in  a  law  protecting  trustees  and  guardians  from  all 
consequences  of  acts  done  by  them  in  good  faith  and  under  color 
of  law,  but  which  subsequent  events  have  proved  to  be  defective 
or  illegal.  I  think,  from  my  general  recollection,  that  an  examina 
tion  of  the  legislation  of  the  States,  and  of  the  judicial  decisions 
thereon,  will  disclose  many  such  cases. 

It  should  be  remembered  what  the  precise  question  is.     It  is 


1866.]  OPINIONS    GIVEN    AT    THE    BAR.  375 

whether  a  trustee,  who  has  exercised  in  good  faith  that  discretion 
in  making  investments  of  trust  funds  which  belongs  to  him,  shall 
be  held  by  a  court  of  equity  to  have  transcended  his  powers. 
And,  without  touching  the  question  whether  the  particular  invest 
ment  did  or  did  not  exceed  the  then  existing  powers  of  the  trustee, 
I  do  not  doubt  that  it  is  within  the  legislative  power  of  the  State 
of  Alabama  to  enact,  that  investments  made  in  good  faith  by 
trustees,  though  not  authorized  by  existing  laws,  shall  be  deemed 
to  be  in  execution  of  their  trusts.  And  I  perceive  no  sufficient 
reason  why  this  law  enacted  by  the  Legislature  on  this  subject, 
should  not  be  respected  by  the  courts  of  the  United  States.  It  is 
true  that  the  courts  of  the  United  States,  in  the  exercise  of  their 
equity  powers,  are  not  controlled  by  the  laws  of  the  State.  But 
what  are  equitable  rights  and  titles  are  not  only  affected,  but 
in  many  cases  must  be  absolutely  controlled,  by  those  local  laws 
which  alone  can  create  and  regulate  them.  And  I  do  not  suppose 
any  lawyer,  instructed  in  our  complicated  system  of  jurisprudence, 
will  undertake  to  maintain  that  a  trustee,  appointed  under  the  laws 
of  a  State,  and  accountable  directly  to  its  courts  for  the  execution 
of  his  trust,  can  be  held  anywhere,  or  in  any  court,  to  account 
otherwise  than  in  substantial  conformity  to  those  laws.  And  if 
those  laws,  either  by  way  of  previous  authority,  or  subsequent 
ratification,  justify  his  conduct,  I  do  not  perceive  how  it  can  suc 
cessfully  be  questioned. 

B.  R.  CURTIS. 

CONSTITUTIONAL    LAW.  —  OBLIGATION    OF    CONTRACTS. 
OPINION. 

By  Stat.  1827,  ch.  32,  the  Boston  Beer  Company  was  made  a  cor 
poration  "  for  the  purpose  of  manufacturing  malt  liquors  in  all  their 
varieties,  in  the  city  of  Boston,  and  for  that  purpo.-e  shall  have  all 
the  powers  and  privileges  and  be  subject  to  all  the  duties  and  re 
quirements  contained  in  an  act  passed  March  3,  1809  (Stat.  1808, 
ch.  Go), "and  the  corporation  was  authorized  to  hold  such  real  estate 
and  personal  estate,  of  limited  amounts,  as  might  be  found  neces 
sary  or  convenient  for  carrying  on  such  manufacture. 

The  corporation  having  been  organized,  and  its  capital  stock  paid 
in,  real  and  personal  estate  were  purchased,  and  fitted  for,  and  ap 
plied  to  such  manufacture. 


376  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1866. 

By  Gen.  Stat.,  ch.  86,  sect.  28,  the  manufacture  of  beer  for  sale 
is  prohibited.  By  sections  12-15.  provision  is  made  for  obtaining  a 
license  from  the  mayor  and  aldermen  to  manufacture  spirituous  or 
intoxicating  liquors  (which  include  beer)  for  export,  or  use  in  the 
arts,  or  sale  to  town  agents.  But  a  bond  with  penalties  is  required 
to  be  given  to  observe  all  the  restrictions  of  the  law. 

By  Stat.  1829,  ch.  53,  sect.  16,  the  act  of  1808  and  all  acts  in 
addition  thereto  were  repealed,  with  a  qualification. 

By  the  Revised  Statutes  this  last-mentioned  act  was  repealed ; 
but  this  repeal  did  not  revive  the  act  of  1808  (Rev.  Stat.,  ch.  146, 
sect.  9). 

Upon  this  legislation  the  question  arises  whether  the  prohibition 
to  manufacture  beer  for  sale,  contained  in  the  General  Statutes, 
impaired  the  obligation  of  the  contract  contained  in  the  charter. 

There  can  be  no  doubt  that  the  powers  granted  by  the  charter 
itself  are  materially  and  substantially  abridged  by  this  prohibition. 
The  corporation  was  empowered  by  the  charter  to  manufacture 
beer  in  the  city  of  Boston ;  and  there  can  be  no  doubt  that  what 
they  were  thus  empowered  to  make  they  were  also  empowered  to 
sell,  in  the  city  of  Boston  and  elsewhere,  according  to  the  usual 
course  of  such  business.  The  restriction  contained  in  the  General 
Statutes  as  to  quantity,  place,  person,  and  use  are  manifestly  substan 
tial  and  material.  So  much  so,  that  I  understand  them  to  render 
it  impracticable  to  conduct  the  business  with  any  profit  whatever, 
and  if  there  was  no  qualification  of  the  grant  of  powers  contained 
in  the  charter,  there  could  be  no  reasonable  doubt  that  the  law 
which  imposed  such  restriction  upon  the  powers  granted  as  ren 
dered  them  useless  and  impracticable,  was  a  law  which  impaired  the 
obligation  of  the  contract  arising  from  that  grant. 

Four  questions  seem  to  me  to  arise. 

1.  Is  the  prohibitory  legislation  which  impairs  the  powers  of  this 
corporation  a  lawful  exercise  of  the  police  powers  of  the  State? 

2.  Is  it  within  the  seventh  section  of  the  act  of  1808  ? 

3.  Has  the  seventh  section  of  that  statute  been  effectually  re 
pealed  ? 

4.  Is  it  competent  for  the  Legislature  to  re-enact  the  seventh 
section  of  that  statute,  or  in  any  manner   regain   the   powers   over 
corporations  which  that  section  provided  for  ? 

As  to  the  First  Question.  I  am  of  opinion  that  every  grant 
made  by  the  State  is  under  the  protection  of  the  Constitution  of  the 


1866.]  OPINIONS    GIVEN   AT   THE   BAR.  377 

United  States,  to  the  full  and  entire  extent  of  the  thing  granted. 
This  leaves  open  the  question,  in  each  case,  what  is  the  thing 
granted ;  or.  more  properly,  in  reference  to  this  topic,  what  restric 
tions  upon  the  grant  are  implied  by  law  from  the  nature  of  the 
thing  granted.  Within  the  limits  of  these  implied  restrictions,  the 
Legislature  may  exercise  its  police  powers  in  regulating  the  mode 
or  extent  of  the  use  of  the  thing  granted.  But  outside  of  the  lim 
its  of  such  implied  restrictions  the  Legislature  cannot  act,  for  the 
plain  and  sufficient  reason  that  its  action  would  derogate  from  its 
grant,  and  thus  necessarily  impair  the  obligation  of  its  contract. 
This  distinction  between  acting  within  the  limits  of  restriction  im 
plied  by  law  from  the  nature  of  the  thing  granted,  and  acting  with 
out  such  limits,  will  be  found  to  run  through  the  decisions  ;  and 
even  when  it  has  not  been  expressly  declared,  the  courts  have  mani 
festly  upheld  the  exercise  of  police  powers  only  by  first  showing  that 
the  nature  of  the  grant  was  such  as  to  be  subject  to  implied  restric 
tions  which  allowed  the  exercise  of  police  powers.  (See  remarks 
of  the  court  in  People  v.  Plait,  17  Johnson,  195,  upon  the  case  of 
Stougltton  v.  Baker,  4  Mass.  Rep.  522,  and  the  reasoning  of  Shaw, 
C.  J.  in  Commonwealth  v.  Alger,  1  Gush.  53,  passim.} 

But  it  seems  to  me  not  possible  to  show  that  the  legislation 
now  in  question  is  within  the  limits  of  restrictions  implied  from  the 
nature  of  the  grant.  In  effect,  the  restrictions  and  prohibitions 
imposed  annul  the  entire  grant.  That  grant  was  of  a  right  to 
employ  the  capital  of  the  company  to  manufacture  beer  in  the  city 
of  Boston  for  sale.  The  prohibition  is  to  manufacture  at  all  with 
out  obtaining  a  license  and  giving  a  bond  to  observe  its  terms  and 
conditions  ;  and  then,  only  to  manufacture  for  export  and  sale  to 
town  agents,  whose  sales  are  restricted  within  very  narrow  limits. 
And  it  is  stated  to  be  true,  that  the  power  so  to  manufacture  and 
sell  is  not  only  substantially  different  from  the  power  granted  by 
the  charter,  but  includes  no  part  of  that  power  which  is  of  any 
practical  value  ivhtitcver. 

That  the  law  of  Massachusetts  at  the  date  of  this  grant  implied 
that  the  grant  itself  might  be  revoked,  or  thus  restricted,  cannot  be 
maintained.  In  my  opinion  there  was  no  implication  of  any  restric 
tions  on  the  grant  substantially  and  materially  inconsistent  with 
the  fair  meaning  of  the  words  of  the  grant  itself.  This  is  deduci- 
ble,  not  only  from  the  principles  which  govern  the  interpretation 
and  effect  of  such  grants,  but  from  the  fact  that  the  Legislature,  by  the 


378  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1866. 

act  of  1 808,  which  is  referred  to  in  the  charter,  has  expressly  defined 
the  extent  of  its  own  power  to  alter  or  amend,  the  grant;  so  there 
is  no  room  for  any  implication  on  that  subject.  It  is  not  intended 
by  this  to  say,  that  the  Legislature  retained  no  power  over  the  cor 
poration,  arising  from  its  general  authority  to  make  all  manner 
of  wholesome  laws,  &c.  There  can  be  no  reasonable  doubt  that 
both  the  real  and  personal  property  of  this  corporation,  and  its 
franchises  and  business,  were  under  the  control  of  the  legislative 
power  for  many  purposes  and  in  many  particulars.  But  I  have  as 
little  doubt  that  the  power  of  the  Legislature  substantially  to 
change,  restrict,  or  destroy  its  franchise  to  prosecute  the  business 
for  which  the  corporation  was  created,  and  to  which  its  capital 
stock  was  adapted,  on  the  faith  of  its  charter,  must  be  looked  for, 
not  in  the  police  powers  of  the  State,  but  in  the  reservation  con 
tained  in  the  act  of  1808  referred  to  in  the  charter. 

The  Second  Question. 

The  seventh  section  of  the  act  of  1808  is  restricted  both  by  its 
terms  and  its  subject-matter  to  action  by  the  Legislature,  after 
notice,  upon  the  charter  itself.  General  legislation  had  without 
notice  to  the  corporation,  and  without  any  action  upon  the  specific 
grant  made  by  its  charter,  is  not  within  this  provision.  In  a  some 
what  similar  case  of  People  v.  Platt,  17  Johnson,  195,  it  was 
deemed  most  respectful  to  the  Legislature  to  assume  that,  in  ena£t- 
ing  a  general  law  which  would  impair  a  grant  if  allowed  to  operate 
thereon,  the  Legislature  did  not  have  the  particular  grant  in  view, 
and  did  not  intend  to  impair  it. 

But  whatever  supposition  may  be  resorted  to,  it  seems  to  me 
clear  that  the  provisions  of  the  General  Statutes  now  in  question 
cannot  be  deemed  to  be  either  a  further  regulation  for  the  manage 
ment  of  the  business  of  this  corporation,  or  a  repeal  of  its  charter 
"  upon  due  notice  to  the  corporation." 

The  Third  Question. 

The  act  of  1829,  ch.  53,  sect.  16,  repealed  the  whole  of  the  act  of 
1808,  subject  only  to  the  qualification,  "  but  this  repeal  shall  not 
affect  the  existing  rights  of  any  persons,  or  the  existing  or  future 
liabilities  of  any  corporation,  or  any  members  of  any  corporation, 
now  established,  until  such  corporation  shall  have  adopted  this  act 
and  complied  with  the  provisions  herein  contained,"  In  my  opin 
ion  the  qualification  has  no  reference  to  the  subject-matter  of  the 
seventh  section  of  the  act  of  1808,  but  relates  exclusively  to  the 


1866.]  OPINIONS   GIVEN  AT   THE  BAB.  379 

rights  of  persons  against  the  corporation  and  its  members,  which  it 
was  one  object  of  this  act  to  modify,  if  it  should  be  accepted  and 
its  terms  complied  with  by  any  existing  corporation.  Its  language 
is  wholly  satisfied  by  such  a  construction,  and  its  terms  can  prop 
erly  signify  nothing  more.  "  The  rights  of  any  person,  or  the  exist 
ing  or  future  liabilities  of  any  corporation,  or  any  members  of  any 
corporation,"  have  a  natural  and  appropriate  meaning,  when  ap 
plied  to  the  rights  of  third  persons  and  the  corresponding  liabili 
ties  to  third  persons  of  the  corporation  and  its  members ;  but 
certainly  do  not  fitly  describe  or  indicate  a  power  of  the  Legislature 
to  alter,  amend,  or  repeal  a  charter.  And  subsequent  legislation 
tends  strongly  to  confirm  this  view. 

It  should  be  observed  that,  by  the  seventeenth  section  of  this  act 
of  1831,  the  only  power  reserved  by  the  Legislature  over  the  char 
ters  of  corporations  established  under  or  adopting  that  act  was  a 
power  to  sweep  them  all  out  of  existence  by  a  repeal  of  the  act 
itself.  There  was  no  power  to  alter  or  amend  a  charter,  and  no 
power  to  repeal  any  one  charter.  Doubtless  this  defect  was  discov 
ered  ;  and  March  11, 1831,  the  Stat.  1830,  ch.  31,  was  passed,  which 
declared  that  all  acts  of  incorporation  passed  after  that  date  should 
be  subject  to  be  amended,  altered,  or  repealed  at  the  pleasure  of  the 
Legislature. 

When  the  Revised  Statutes  were  enacted,  and  subsequently 
when  the  General  Statutes  were  enacted,  the  legislative  power 
over  corporations  was  declared  to  extend  to  those  created  after 
March  11,  1831  ;  and  there  is  no  trace  of  any  other  claim  of  author 
ity,  so  far  as  I  know,  from  the  time  when  the  act  of  1808  was  re 
pealed  by  the  act  of  1829,  ch.  53,  to  the  present  time.  It  seems  to 
me  that  these  laws  in  the  Revised  Statutes  and  General  Statutes 
must  be  taken  to  be  well-considered  statements  of  the  whole  au 
thority  claimed  by  the  Legislature  over  the  alteration  or  repeal  of 
charters;  and  when  it  is  expressly  limited  to  those  created  since 
March  11,  1831,  such  limitation  shows  that  it  was  at  that  date,  and 
by  virtue  of  the  act  then  passed,  that  this  power  was  called  into 
existence ;  and  that  as  to  corporations  previously  created  no  such 
power  existed. 

As  to  the  Fourth  Question. 

When  the  grant  now  in  question  was  originally  made,  it  was 
subject  to  a  reservation,  by  force  of  which  it  might  be  revoked  or 
modified  after  due  notice  to  the  corporation.  By  subsequent  legis- 


380  MEMOIR   OF  BENJAMIN   11OBBINS   CURTIS.  [1866. 

lation  this  reservation  was,  I  think,  extinguished.  By  this  relin- 
quishment,  the  grant,  which  was  originally  in  part  or  in  whole, 
became  absolute  arid  irrevocable  either  in  part  or  in  whole.  The 
original  qualification  of  the  grant,  which  affected  the  obligation  of 
the  contract  arising  from  it,  was  removed,  the  grant  became  abso 
lute,  and  the  obligation  of  the  contract  arising  from  it  was  thence 
forward  unqualified. 

The  effect  of  such  a  relinquishrnent  of  a  power  of  revocation,  or 
alteration,  in  the  case  of  private  grants,  would  not  admit  of  doubt. 
Once  effectually  made,  the  relinquishment  of  a  power  over  prop 
erty  is  a  final  extinguishment  of  the  power,  and  it  can  never  be 
resumed.  And  after  much  reflection  I  am  not  able  to  see  why  the 
same  is  not  true  of  the  relinquishment  of  the  powers  reserved  by 
the  legislature  in  the  seventh  section  of  the  act  of  1808.  The  subject 
of  the  power  was  private  property,  whose  existence  and  enjoyment 
were  wholly  beyond  legislative  control  save  by  force  of  the  power 
reserved.  As  soon  as  that  power  was  released,  the  right  to  this 
private  property  became  as  absolute  as  if  it  had  been  originally  so 
granted.  The  reason  why  the  State  cannot  resume  franchises  once 
absolutely  granted  is  that  such  resumption  derogates  from  its 
grant,  and  this  impairs  the  obligation  of  the  contract  arising  from 
the  grant.  But  it  cannot  be  material  that  this  contract  arises  from 
two  acts  of  the  Legislature,  instead  of  one.  If  the  first  grant  is 
conditional,  and  afterwards  the  condition  is  released,  —  if  the  first 
grant  is  revocable,  and  afterwards  the  power  of  revocation  is  re 
linquished, —  it  would  be  impossible,  I  think,  to  distinguish  that 
case  from  a  grant  originally  absolute  and  irrevocable.  The  ques 
tion  in  both  cases  would  be  whether  the  act  revoking  or  changing 
the  grant  was  in  derogation  of  it,  as  it  existed  when  attempted  to 
be  revoked  or  changed.  If  the  charter  of  this  corporation  had 
contained  a  section  substantially  like  the  seventh  section  of  the 
act  of  1808,  and  subsequently  the  Legislature  had  repealed  that 
section,  I  am  not  able  to  perceive  any  sufficient  grounds  for  believ 
ing  that,  after  such  repeal,  the  grant  would  be  other  than  it  would 
have  been  if  the  charter  had  not  originally  contained  the  repealed 
section.  And  the  fact  that  the  reserved  power  was  contained  in  a 
general  law  referred  to  in  the  charter,  does  not  seem  to  me  to  be 
material. 

I  ought  to  say,  that,  after  careful  examination,  no  decision  of  this 
precise  question  has  been  found,  and  that  I  cannot,  therefore,  rely 


1866.]  OPINIONS   GIVEN   AT   THE  BAK.  381 

on  either  the  reasoning  or  authority  of  any  court  in  answering  the 
question.  But  my  own  opinion  is,  that,  when  the  act  of  1808  was 
repealed,  the  Legislature  finally  relinquished  the  powers  reserved 
in  its  seventh  section.  And,  as  has  been  already  noticed  in  an 
other  connection,  the  legislation,  both  in  the  Revised  and  General 
Statutes,  upon  this  particular  subject,  has  a  very  strong  tendency 
to  confirm  this  opinion.  It  can  scarcely  be  doubted  that  the  24th 
section  of  the  44th  chapter  of  the  Revised  Statutes,  and  the  41st 
section  of  the  Gist  chapter  of  the  General  Statutes,  were  each 
intended  to  set  forth  and  preserve  the  entire  power  of  the  Legis 
lature  to  alter,  amend,  or  repeal  acts  of  incorporation  ;  but  that 
power  is  there  expressly  limited  to  acts  passed  after  March  11, 
1831. 

In  answer  to  the  specific  questions  proposed,  — 

1.  I  am  of  opinion  that  debts  due  to  the  corporation  for  malt 
liquor  made  and  sold  in  the  usual  course  of  its  business  may  be 
collected. 

2.  I  am   of  opinion   that  beer   manufactured  by  the   company 
under  the   powers   contained   in  its  charter,  and  consigned  to  its 
agents  for  sale,  in  the  usual  course  of  such  business,  cannot  law 
fully  be  seized  and  condemned.     But    I    do  not    think  the  char 
ter  gives    the    right    to    become    retailers    through  agents.     Such 
was  not  the  usual  course  of  such  business  when  the  charter  was 
granted. 

3.  I  am  of  opinion  that  the  corporation  has  the  right  to  sell  to 
its  customers  beer  manufactured  by  the  corporation  pursuant  to  its 
charter. 

4.  What  rights  are  acquired  by  the  purchasers  to  use  and  sell 
what  is  thus  purchased,  it  is  not  so  easy  to  answer.     I  should  wish 
to  know  fully   the   facts  of  the  particular   case  before  giving  an 
opinion  on  it.      Some  considerations  likely  to  bear  on   any  such 
case  may  be  stated. 

1st.  It  is  clear  that  the  right  to  manufacture  malt  liquors 
necessarily  gave  the  right  to  sell  them  in  the  usual  course  of  such 
business,  and  that  any  law  which  substantially  impairs  this  right  of 
sale  is  inconsistent  with  the  grant  made  by  the  charier. 

2d.  It  is  equally  clear,  that  the  right  of  a  manufacturer  of  this 
article,  generally  sold,  not  to  consumers,  but  to  wholesale  and  retail 
dealers,  is  substantially  impaired,  if  those  entire  and  principal  classes 
of  his  customers  can  make  no  use,  in  their  business,  of  what  they 


382  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1865. 

buy.     A  prohibition  on  wholesale  and  retail  dealers  to  sell  is,  in 
effect,  a  prohibition  to  buy. 

If  the  enactment  were,  that  no  wholesale  or  retail  dealer  should 
buy  any  beer  of  this  corporation,  I  should  not  doubt  that  such  a 
law  would  impair  the  right  of  the  corporation  to  sell  it,  and  it  can 
hardly  be  material,  in  reference  to  the' corporate  rights  or  powers, 
whether  the  prohibition  be  to  purchase,  or  to  make  the  only  use  of 
the  article  which  the  purchaser  would  buy  it  for. 

3d.  At  the  same  time,  I  think  the  Legislature  may  regulate  the 
sale  of  beer  by  purchasers  of  it  from  the  corporation,  and  that  such 
powers  of  regulation  would  be  very  liberally  construed  by  the 
courts.  And,  for  obvious  reasons,  I  should  prefer  to  give  no  opinion 
upon  the  case  of  a  purchaser  from  the  corporation,  without  having 
all  the  facts  before  me. 

B.  R.  CURTIS. 


1865.]  ACCESSION   OF  PRESIDENT  JOHNSON.  383 


CHAPTER  XIII. 

1865-1868. 

Accession  of  Andrew  Johnson  to  the  Presidency.  —  Letter  to  the  Philadel 
phia  Convention  of  August,  1866.  —  Impeachment  of  President  Johnson. 
—  Judge  Curtis  requested  to  defend  the  President.  —  His  Opening  Argu 
ment.  —  Letters  to  Mr.  Ticknor  during  the  Trial.  —  Acquittal  of  the  Presi 
dent.  —  Declines  the  Office  of  Attorney-General. 

IN  consequence  of  the  assassination  of  Mr.  Lincoln,  which 
occurred  on  the  14th  of  April,  1865,  the  office  and  duties  of 
President  of  the  United  States  devolved  on  Andrew  John 
son,  the  Vice-President.  The  personal  qualities  of  Mr. 
Johnson  will  be  found  pretty  accurately  described  by.  Judge 
Curtis,  in  a  letter  that  will  be  quoted  when  I  reach  the 
period  of  his  impeachment.  At  the  time  when  he  succeeded 
to  the  Presidency,  but  little  was  known  about  him,  by  the 
people  of  the  United  States  at  large,  excepting  that  he  was 
a  man  of  great  honesty  of  character,  and  that  he  had  been 
heroically  faithful  to  the  Union,  in  his  own  State  of  Ten 
nessee.  Th<e  civil  war,  when  he  became  President,  was 
virtually  ended,  but  its  termination  had  not  been  officially 
proclaimed.  One  of  his  earliest  official  acts  as  President, 
looking  to  the  re-establishment  of  constitutional  relations 
between  the  people  of  the  lately  revolted  States  and  the 
government  of  the  United  States,  was  a  Proclamation  of 
Amnesty  and  Pardon,  issued  on  the  29th  of  May,  1865, 
releasing  the  inhabitants  of  those  States,  who  had  directly 
or  indirectly  aided  the  rebellion,  with  certain  exceptions 
and  on  certain  conditions,  from  all  penalties  incurred  under 
the  laws  of  the  United  States.  The  object  of  this  measure 


384  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [18G5. 

was  to  put  the  people  of  those  States  into  a  condition  to 
re-establish  for  themselves  republican  governments,  in  har 
mony  with  the  Constitution  of  the  United  States.  Still 
farther  to  promote  this  object,  Proclamations  were  issued 
successively  between  the  29th  of  May  and  the  13th  of 
July,  appointing  Provisional  Governors  for  the  States  of 
North  Carolina,  Mississippi,  Georgia,  Texas,  Alabama, 
South  Carolina,  and  Florida. 

These  Proclamations  were  based  upon  -two  positions : 
First,  that  the  Constitution  of  the  United  States  had  guar 
anteed  to  every  State  in  the  Union  a  republican  form  of 
government,  and  protection  against  invasion  and  domestic 
violence.  Secondly,  that  the  President  as  military  command- 
er-in-chief,  and,  as  chief  executive  officer  of  the  United  States, 
bound  by  his  official  oath  to  take  care  that  the  laws  be  faith 
fully  executed,  was  authorized  to  make  known  officially  that 
the  rebellion  was  ended,  and  to  take  the  preliminary  steps 
necessary  to  enable  the  people  of  the  lately  revolted  States 
to  form  for  themselves  loyal  State  governments,  in  place  of 
the  disloyal  governments  which  it  had  been  the  duty  of  the 
Executive  to  suppress.  Accordingly,  the  Proclamations,  be 
sides  providing  for  the  appointment  of  Provisional  Governors, 
directed  them,  at  the  earliest  practicable  period,  to  call  con 
ventions  of  the  loyal  people  of  those  States  respectively,  for 
the  purpose  of  altering  or  amending  their  constitutions,  in 
order  to  form  such  a  republican  government,  in  each  of  them, 
as  would  restore  the  State  to  its  constitutional  relations  with 
the  Federal  government,  and  would  entitle  the  State  to  the 
guaranty  of  the  Federal  Constitution.  The  sole  qualifica 
tions  which  the  Proclamations  prescribed  for  membership 
in  these  conventions,  was  the  having  previously  taken  and 
subscribed  the  oath  of  amnesty,  and  a  right  of  voting  under 
the  Constitution  and  laws  of  the  State,  in  force  at  the  time 
of  the  adoption  of  the  so-called  Ordinance  of  Secession.  It 
was  left  to  the  conventions,  or  to  the  new  legislatures  that 
might  thereafter  be  assembled,  to  fix  the  qualifications  of 


1865.]          PRESIDENT   LINCOLN'S   SUPPOSED   POLICY.  385 

electors.  The  various  executive  departments  of  the  Fed 
eral  government  were  directed  by  the  Proclamations  to  take 
all  necessary  measures  to  execute  the  laws  of  the  United 
States  in  the  several  States  referred  to. 

This  measure,  comprehensive  and  comparatively  free  from 
difficulty,  was  believed  by  President  Johnson  and  his  offi 
cial  advisers  to  be  substantially  in  accordance  with  the 
policy  which  Mr.  Lincoln  would  have  pursued,  if  he  had 
lived.  But  it  was  the  misfortune  of  Mr.  Johnson,  that  he 
could  be  said  to  have  no  party  to  support  his  measures. 
The  party  which  had  elected  both  Mr.  Lincoln  and  himself 
to  their  respective  positions  had,  as  has  not  infrequently 
occurred,  paid  little  attention  to  the  personal  qualities  and 
political  views  of  their  candidate  for  the  Vice-Presidency  ; 
so  that  when  Mr.  Johnson  became  President,  and  when  it 
appeared  that  he  was  a  man  of  very  firm  convictions  in  re 
gard  to  his  constitutional  duties,  there  was  great  danger  of  a 
conflict  between  him  and  the  dominant  party  in  Congress. 

An  occasion  was  not  wanting.  The  great  question  of 
what  was  to  be  done  with  the  colored  people  of  the  South 
ern  States  was  looming  portentously  into  view.  Mr.  Lin 
coln's  Emancipation-  Proclamation  of  September  22d,  1862, 
was  followed  only  by  a  practical  dissolution  of  the  condi 
tion  of  servitude  wherever  the  Federal  arms  had  extended, 
and  it  was  not  felt  by  him  or  others  to  be  a  safe  basis  on 
which  to  rest  the  final  extinction  of  slavery.  Congress, 
at  its  session  which  terminated  early  in  July,  1864,  had 
passed  a  bill  containing  a  plan  for  the  restoration  of  the 
Southern  States  to  the  Union,  which  Mr.  Lincoln  had  de 
clined  to  approve.  On  the  8th  of  July,  1864,  he  issued  a 
Proclamation,  calling  the  attention  of  the  people  of  the 
United  States  to  this  bill.  In  this  Proclamation  he  referred 
to  a  plan  of  his  own,  which  he  had  proposed  in  December, 
186-3,  of  which  it  is  here  needful  to  give  some  account. 

Mr.  Lincoln's  plan  of  restoration  comprehended  an  Exec 
utive  pardon  and  amnesty,  with  certain  exceptions,  and  an 
VOL.  i.  25 


386  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1865 

oath  of  fealty  to  the  Constitution  of  the  United  States,  and 
to  the  acts  of  Congress  and  Proclamations  of  the  President 
relating  to  slaves,  so  long  and  so  far  as  they  should  not  be 
modified  or  declared  void  by  decision  of  the  Supreme  Court. 
It  also  contemplated  the  establishment  of  a  State  govern 
ment,  by  a  certain  denned  proportion  of  the  legal  voters 
of  eacli  State,  who  were  qualified  to  be  electors  under  the 
old  laws  of  the  State  ;  which  government,  if  republican  in 
form,  President  Lincoln  proposed  to  recognize  as  entitled 
to  the  guaranty  of  the  Federal  Constitution.  All  that  he 
suggested  further,  in  relation  to  the  colored  people,  was 
embraced  in  the  following  clause :  — 

"  That  any  provision  which  may  be  adopted  by  such  State  gov 
ernment  in  relation  to  the  freed  people  of  such  State,  which  shall 
recognize  and  declare  their  permanent  freedom,  provide  for  their 
education,  and  which  may  yet  be  consistent  as  a  temporary  arrange 
ment  with  their  present  condition,  as  a  laboring,  landless,  and  home 
less  class,  will  not  be  objected  to  by  the  national  Executive" 

This  plan  of  Mr.  Lincoln,  like  the  subsequent  one  of  Mr. 
Johnson,  proceeded  upon  the  idea  that  it  was  competent  to 
the  Executive  to  take  the  preliminary  steps  necessary  to 
assist  the  people  of  those  States  in  forming  loyal  and  re 
publican  governments.  It  differed  from  Mr.  Johnson's 
plan  chiefly  in  this,  —  that  the  latter  made  no  reference  at 
all  to  the  colored  race.  Neither  of  these  two  plans,  how 
ever,  contemplated  any  basis  of  suffrage  other  than  that 
which  existed  before  the  secession.  Mr.  Lincoln's  plan  was 
much  less  comprehensive  than  Mr.  Johnson's  in  respect  to 
the  popular  basis  of  the  new  governments,  although  neither 
proposed  any  suffrage  but  that  of  the  whites.  Nor  did 
the  Congressional  bill  of  1864,  which  Mr.  Lincoln  did  not 
approve,  embrace  negro  suffrage,  although  it  contained  a 
provision  which  undertook  to  emancipate  all  slaves  and 
their  posterity  for  ever. 

When  President  Lincoln,  in  his  Proclamation  of  July  8, 
1864,  stated  his  reasons  for  not  approving  the  Congressional 


1866.]         PRESIDENT   LINCOLN'S    SUPPOSED   POLICY.  387 

plan,  but  laid  it  before  the  people  of  the  country  for  their 
consideration,  he  said,  that,  while  he  was  not  inflexibly 
committed  to  his  own  mode  of  proceeding,  he  was  unwill 
ing  to  have  the  free  constitutions  and  governments  already 
adopted  in  Arkansas  and  Louisiana,  set  aside,  to  the  dis 
couragement  of  the  loyal  people  of  those  States  from  fur 
ther  exertions  in  behalf  of  the  Union  ;  and  that  he  was  also 
unwilling  to  affirm  a  constitutional  capacity  in  Congress  to 
abolish  slavery  in  a  State.  He  hoped,  he  said,  to  see  this 
done  by  an  amendment  of  the  Federal  Constitution.  But 
he  nevertheless  declared  himself  satisfied  with  the  "  system 
for  restoration  "  which  the  bill  contained,  "  as  one  very 
proper  plan  to  be  adopted  by  the  loyal  people  of  any  State 
choosing  to  adopt  it " ;  and  he  professed  his  entire  readi 
ness  to  aid  such  people  in  carrying  it  out,  wherever  the 
rebellion  should  have  ceased,  and  the  people  have  suffi 
ciently  returned  to  their  obedience  to  the  Constitution  and 
laws  of  the  United  States.  Wherever  this  should  be  the 
case,  he  promised  to  appoint  Provisional  Governors,  and  to 
direct  them  to  proceed  according  to  the  provisions  of  the 
bill. 

As  the  bill  had  not  become  a  law,  it  is  quite  apparent 
that  Mr.  Lincoln  considered  that  it  was  competent  to  the 
Executive  to  adopt  and  follow  any  feasible  plan  that  would 
produce  the  establishment  of  State  governments,  republican 
in  form,  in  ha'rmony  with  the  Federal  Constitution,  and 
consistent  with  the  inherent  right  of  the  loyal  white  people 
of  every  State  to  shape  their  own  political  institutions.  If 
he  had  lived  to  act  finally  upon  this  subject,  it  is  probable 
that  he  would,  if  not  hampered  by  the  interference  of 
Congress,  have  used  his  own  or  the  Congressional  plan 
indifferently,  according  as  the  particular  circumstances  of 
each  State  rendered  either  the  most  practicable.  Slavery 
he  meant  to  leave  to  be  abolished  by  an  amendment  of 
the  Federal  Constitution.  Such  an  amendment  was  pro 
posed  by  Congress  to  the  States  on  the  1st  of  February, 


388  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1866. 

1865 ;  but  it  was  not  finally  declared  to  have  been  ratified, 
until  the  18th  of  December,  1865,  eight  months  after  Mr. 
Lincoln's  death.1 

In  the  mean  time,  President  Johnson's  plan  for  restoring 
the  Southern  States  to  their  position  in  the  Union,  promul 
gated  in  the  spring  nf  1865,  awakened  the  utmost  jealousy 
among  the  leaders  of  the  dominant  party  in  Congress. 
Although  it  differed  in  no  very  important  particulars  from 
that  of  their  lamented  chief,  they  determined  to  oppose  it. 
They  claimed  that  the  whole  duty  and  power  of  restoring 
the  Southern  States  to  the  Union,  and  of  imposing  the  con 
ditions  on  which  they  were  to  act,  belonged  to  the  legislative 
department ;  and  that  the  Executive  could  do  nothing  but 
what  he  was  directed  and  authorized  to  do  by  Congress. 

Thus  the  executive  and  the  legislative  departments  were 
directly  at  variance  in  regard  to  the  whole  subject  of  re 
storing  the  Southern  States  to  the  Union.  The  executive, 
ordinarily  the  most  feeble  of  the  two  departments  in  any 
contest  between  them,  was  not  well  supported  by  the  peo 
ple  of  the  North.  Shortly  after  President  Johnson  had 
announced  his  plan,  an  amendment  of  the  Federal  Con 
stitution,  making  every  person  born  on  the  soil  of  any 
State  a  citizen  of  that  State  and  of  the  United  States,  was 
proposed  by  Congress  to  the  States.2  No  objection  could 
be,  and  none  was,  made  to  this  by  President  Johnson. 
But  the  subject  absorbed  a  good  deal  of  the  public  atten 
tion,  and  its  consideration  tended  to  prevent  the  people  of 
the  North  from  interposing  effectually  in  the  controversy 
between  the  President  and  the  Congress  in  regard  to  the 
mode  of  restoring  the  Southern  States  to  the  Union.  That 
conflict  continued,  both  on  this  point  and  many  others, 
until  a  portion  of  the  reflecting  people  of  the  country  be 
thought  themselves  of  a  means  for  concentrating  public 

1  Thirteenth  Amendment. 

3  Fourteenth  Amendment,  proposed  June  16,  1866;  declared  adopted, 
July  28,  1868. 


1866]  PHILADELPHIA    CONVENTION  IN   1866.  389 

opinion,  so  as  to  bring  about  some  result  by  which  the 
people  of  the  Southern  States  could  be  rescued  from  their 
anomalous  and  dangerous  condition.  A  national  popular 
convention  was  invited  to  assemble  at  Philadelphia,  on  the 
14th  of  August,  1866. 1  Judge  Curtis  was  strongly  urged 
to  become  a  member  of  this  body.  How  he  acted  in  regard 
to  it,  will  be  seen  from  the  following  private,  and  the  sub 
joined  public  letter. 

To  MR.  TICKNOR. 

MAPLEHURST,  July  27,  1866. 

MY  DEAR  UNCLE,  —  I  am  afraid  you  would  not  have  counselled 
me  to  do  such  a  thing,  but  I  have  written  a  letter  to  the  managers 
of  the  Philadelphia  Convention,  with  liberty  to  publish  it,  and  it  is 
printed  in  many  papers.  But  as  the  country  to  which  I  belong 
does  not  honor  me  as  a  prophet,  you  will  not,  or  may  not,  see  it, 
and  I  therefore  send  you  a  copy  taken  from  the  Washington  In 
telligencer.  So  far  as  it  relates  to  the  subject  of  the  reconstruction 
of  governments  in  the  rebellious  States,  and  the  action  of  the 
executive  power  of  the  United  States,  it  has  been  thought  of  long 
arid  anxiously,  and  is  the  best  conclusion  I  have  been  able  to  attain 
to.  It  seems  to  me  consistent  with  our  Constitution,  and  as  safe 
and  practical  as  any  thing  we  can  hope  for. 

So  far  as  it  relates  to  the  spirit  and  general  course  of  action  of 
the  government  of  the  United  States,  I  am  satisfied  it  is  right. 

Neither  you  nor  I  have  much  confidence  in  "  conventions  "  ;  but, 
in  the  present  state  of  our  country,  I  have  hope  from  all  honest 
expressions  of  popular  feeling,  and  I  do  not  despair  that  this  may 
be  such  an  expression.  The  country  is  partly,  and  I  think  gener 
ally  dissatisfied  with  the  Congress.  They  have  proved  wholly 
unequal  to  their  great  task,  and  I  have  not  felt  at  liberty,  distaste 
ful  as  it  is,  to  refrain  from  saying  what  I  thought.  I  have  many 
expressions  of  opinion  that  it  is  wisely  said ;  but  they  come  mostly 
from  persons  under  some  strong  bias. 

I  am  going  to  Boston  on  Saturday  on  professional  business.     I 

1  This  meeting  was  popularly  and  derisively  called  the  "  arm-in-arm " 
convention,  from  the  circumstance,  that  delegates  sent  from  Massachusetts 
and  South  Carolina  entered  the  hall  on  the  first  day,  together,  and  arm- 
in-arm. 


390  MEMOIR   OF   BENJAMIN  BOBBINS   CUKTIS.  [1866. 

shall  s(uy  at  Beverly  with  Mr.  Bartlett.     But  during  the  few  days 
I  shall  be  there,  I  shall  try  to  come  to  Brookline  and  see  you. 

We  are  all  well.  The  heat  has  been  very  great,  but  relieved 
almost  every  day  by  showers,  which  have  wet  my  hay,  but  cooled 
the  air,  and  assisted  all  of  us  to  equanimity. 

Please  give  my  love  to  Aunt,  and  believe  me 

Yours  always,  B.  R.  CUKTIS. 

To  THE  HON.  0.  H.  BROWNING. 

PITTSFIELD,  July  25,  1866. 

DEAR  SIR,  —  I  thank  you  for  sending  me  a  copy  of  the  call  for 
the  National  Convention  to  be  held  at  Philadelphia  011  the  14th 
day  of  August  next. 

In  the  present  unhappy  condition  of  our  national  affairs,  it 
seems  to  me  fit  and  important  that  delegates  of  the  people  should 
come  together  from  all  parts  of  our  country,  to  manifest  in  an 
authentic  and  convincing  way  the  adhesion  of  their  constituents 
to  the  fundamental  principles  of  our  government,  and  to  that  policy 
and  course  of  action  which  necessarily  result  from  them. 

In  my  judgment  the  propositions  contained  in  the  call  of  the 
convention  are  consistent  with  those  principles  and  that  policy. 

The  nature  of  our  government  does  not  permit  the  United 
States  to  destroy  a  State,  or  acquire  its  territory  by  conquest. 
Neither  does  it  permit  the  people  of  a  State  to  destroy  the 
State,  or  lawfully  affect,  in  any  way,  any  one  of  its  relations  to 
the  United  States.  One  is  as  inconsistent  with  our  Constitution 
as  the  other ;  while  that  Constitution  remains  operative,  each  is 
impossible. 

But  the  government  of  the  United  States  may,  and  must  in  the 
discharge  of  constitutional  duty,  subdue  by  arms  any  number  of 
its  rebellious  citizens  into  quiet  submission  to  its  lawful  authority. 
And  if  the  officers  of  a  State,  having  the  actual  control  of  its  gov 
ernment,  have  disobeyed  the  requirements  to  swear  to  support  the 
Constitution,  and  have  abused  the  power  of  the  State  by  making 
war  on  the  United  States,  this  presents  the  case  of  a  usurping  and 
unlawful  government  of  a  State,  which  the  United  States  may 
rightfully  destroy  by  force  ;  for  undoubtedly  the  provision  of  the 
Constitution  that  "  the  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government,"  must  mean 


1866.]  PHILADELPHIA   CONVENTION   IN   1866.  391 

a  republican  form  of  government  in  harmony  with  the  Constitution, 
and  which  is  so  organized  as  to  be  in  this  Union. 

But  neither  the  power  and  duty  of  the  government  of  the  United 
States  to  subdue  by  arms  rebellious  people  in  the  territorial  limits 
of  one  or  more  States,  nor  its  power  and  duty  to  destroy  a  usurp 
ing  government  de  facto,  can  possibly  authorize  the  United  States 
to  destroy  one  of  the  States  of  the  Union ;  or,  what  must  amount 
to  the  same  thing,  to  acquire  that  absolute  right  over  its  people 
and  its  territory  which  results  from  conquest  in  foreign  war. 

There  are  only  two  alternatives.  One  is,  that,  in  subduing  re 
bellion,  the  United  States  act  rightfully  within  the  limits  of  powers 
conferred  by  the  Constitution  ;  the  other  is,  that  they  make  war  on 
a  part  of  their  own  people,  because  it  is  the  will  of  those  who  con 
trol  the  government  for  the  time  being  to  do  so,  arid  for  such 
objects  as  they  may  choose  to  attain. 

The  last  of  these  alternatives  has  not  been  asserted  by  either 
department  of  the  government  of  the  United  States  at  any  time  ; 
and  I  doubt  if  any  considerable  number  of  persons  can  be  found 
to  sanction  it. 

But  if  the  first  alternative  be  adopted,  it  follows  that  the  Con 
stitution  which  authorized  the  war  prescribed  the  objects  which 
alone  can  rightfully  be  accomplished  by  it;  and  those  objects  are, 
not  the  destruction  of  one  or  more  States,  but  their  preservation  ; 
not  the  destruction  of  government  in  a  State,  but  the  restoration 
of  its'  government  to  a  republican  form  in  harmony  with  the  Con 
stitution  ;  not  the  acquisition  of  the  territory  of  a  State,  and  of 
that  absolute  control  over  the  persons  and  property  of  its  people, 
which  a  foreign  conqueror  would  possess,  but  their  submission  to 
the  Constitution  and  laws  of  the  United  States.  It  seems  to  me  a 
great  and  fundamental  error  to  confound  the  case  of  the  conquest 
of  a  foreign  territory  and  people  with  the  case  of  submission  to  a 
lawful  and  established  constitutional  government,  enforced  through 
the  powers  conferred  on  that  government  for  that  specific  purpose. 
It  is  quite  true  that  such  a  civil  contest  may  have,  and  in  our 
country  has  had,  the  proportions  of  an  actual  war ;  and  that  hu 
manity  and  public  law  unite  in  dictating  the  application  of  rules 
designed  to  mitigate  its  evils,  and  regulate  the  conditions  upon 
which  it  should  be  carried  on. 

But  those  rules  of  public  law  which  concern  the  rights  and 
powers  of  a  conqueror  of  foreign  territory,  reduced  by  conquest  to 


392  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1866. 

entire  submission,  have  no  relation  to  the  active  prosecution  of  war. 
Their  operation  begins  when  war  has  ended  in  submission  ;  they 
are  the  laws  of  a  state  of  peace,  and  not  of  a  state  of  war. 

To  suppose  that  the  government  of  the  United  States  can.  in  a 
state  of  peace,  rightfully  hold  and  exercise  absolute  and  unlimited 
power  over  a  part  of  its  territory  and  people  just  as  long  as  it 
may  choose  to  do  so,  appears  to  me  to  be  unwarranted  by  any  rules 
of  public  law,  abhorrent  to  right  reason,  and  inconsistent  with  the 
nature  of  our  government. 

When  war  has  ceased,  when  the  authority  of  the  Constitution 
and  laws  of  the  United  States  has  been  restored  and  established, 
the  United  States  are  in  possession,  not  under  a  new  title,  as  con 
querors,  but  under  their  old  title,  as  the  lawful  government  of  the 
country ;  and  that  title  has  been  vindicated,  not  by  the  destruction 
of  one  or  more  States,  but  by  their  preservation  ;  and  this  preserva 
tion  can  be  worked  out  practically  only  by  the  restoration  of  repub 
lican  governments,  organized  in  harmony  with  the  Constitution. 

The  title  of  a  conqueror  is  necessarily  inconsistent  with  a 
republican  government,  which  can  be  formed  only  by  the  people 
themselves  to  express  and  execute  their  will. 

And  if  the  preservation  of  the  States  within  the  Union  was  one 
of  the  objects  of  the  war,  and  they  can  be  preserved  only  by  having 
republican  governments  organized  in  harmony  with  the  Constitution, 
and  such  governments  can  be  organized  only  by  the  people  of  those 
States,  then,  manifestly,  it  is  not  only  the  right,  but  the  constitutional 
duty,  of  the  people  of  those  States  to  organize  such  governments  ; 
and  the  government  of  the  United  States  can  have  no  rightful 
authority  to  prohibit  their  organization. 

But  this  right  and  duty  of  the  people  of  the  several  States  can 
only  begin  when  war  has  ceased  and  the  authority  of  the  Constitu 
tion  and  laws  of  the  United  States  has  been  restored  arid  established. 
And,  from  the  nature  of  the  case,  the  government  of  the  United 
States  must  determine  when  that  time  has  come. 

It  is  a  question  of  great  interest,  certainly,  but  not,  I  think,  of 
great  difficulty,  how  and  by  whom  the  government  of  the  United 
States  shall  determine  when  that  time  has  come. 

The  question  whether  de  facto  governments  and  hostile  popula 
tions  have  been  completely  subdued  by  arms,  and  the  lawful 
authority  of  the  United  States  restored  and  established,  is  a  mili 
tary  and  executive  question.  It  does  not  require  legislative  action 


1866.]  PHILADELPHIA  CONVENTION  IN   1866.  393 

to  ascertain  the  necessary  facts  ;  and,  from  the  nature  of  the  case, 
legislative  action  cannot  change  or  materially  affect  them.  As 
commander-in-chief  of  the  army  and  navy,  and  as  the  chief  execu 
tive  officer,  whose  constitutional  duty  it  is  to  see  that  the  laws  are 
faithfully  executed,  it  is  the  official  duty  of  the  President  to  know 
whether  a  rebellion  has  been  suppressed,  and  whether  the  authority 
of  the  Constitution  and  the  laws  of  the  United  States  has  been 
completely  restored  and  firmly  established. 

The  mere  organization  of  a  republican  government,  in  harmony 
with  the  Union,  by  the  people  of  one  of  the  existing  States  of  the 
United  States,  requires  no  enabling  act  of  Congress ;  and  I  can 
find  no  authority  in  the  Constitution  for  any  interference  by  Con 
gress  to  prohibit  or  regulate  the  organization  of  such  a  government 
by  the  people  of  an  existing  State  of  the  Union.  On  the  other 
hand,  it  is  clearly  necessary  that  the  President  should  act,  so  far  at 
least  as  to  remove  out  of  the  way  military  restrictions  on  the  power 
of  the  people  to  assemble  and  to  do  those  acts  which  are  necessary 
to  reorganize  their  government.  This  I  think  he  was  bound  to  do 
as  soon  as  he  became  satisfied  that  the  right  time  had  come. 

After  much  reflection,  and  with  no  such  partiality  for  executive 
power  as  would  be  likely  to  lead  me  astray,  I  have  formed  the 
opinion  that  the  Southern  States  are  now  as  rightfully,  and  should 
be  as  effectually,  in  the  Union,  as  they  were  before  the  madness 
of  their  people  attempted  to  carry  them  out  of  it ;  and  in  this 
opinion  I  believe  a  majority  of  the  people  of  the  Northern  States 
agree. 

The  work  the  people  are  waiting  to  have  done,  this  convention 
may  greatly  help.  If  it  will  elevate  itself  above  sectional  passions, 
ignore  all  party  schemes,  despise  the  sordid  and  petty  scramble  for 
offices,  and  fairly  represent  the  national  instinct  that  the  time  now 
is  when  complete  union  of  all  the  States  is  a  fact  which  it  is  a 
crime  not  to  accomplish,  its  action  cannot  fail  to  be  beneficial  to 
our  country. 

The  passions  generated  in  a  great  and  divided  people  by  long 
and  bloody  civil  war  are  deep  and  formidable.  They  are  not  con 
fined  to  one  section ;  the  victors  as  well  as  the  vanquished  are 
swayed  by  them.  They  connect  themselves  with  the  purest  and 
tenderest  sensibilities  of  our  nature ;  with  our  love  of  country ; 
with  our  love  of  those  who  have  laid  down  their  lives  in  the  con 
test ;  with  the  sufferings  which  war,  in  multiplied  forms,  always 


394  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1867. 

brings  to  the  homes  of  men,  and  still  more  to  the  homes  of  women ; 
and  which  civil  war,  most  of  all,  brings  to  the  homes  of  all. 

And  these  passions  are  the  sharp  and  ready  tools  of  party  spirit, 
of  self-interest,  perversity,  and,  most  of  all,  of  that  fierce  infatua 
tion  which  finds  its  best  satisfaction  in  hatred,  and  its  only  enjoy 
ment  in  revenge. 

No  statesman  who  is  acquainted  with  the  nature  of  man,  and  the 
necessities  of  civil  government,  can  contemplate  such  passions  with 
out  the  deepest  concern,  or  fail  to  do  what  he  fitly  may  to  allay 
them.  Hard  enough  the  work  will  prove  to  be,  at  the  best.  But 
a  scrupulous  regard  for  the  rights  of  all,  and  a  magnanimous 
clemency,  are  twice  blessed;  they  both  elevate  and  soften  the 
powerful,  and  they  reach  and  subdue  what  laws  and  bayonets  can 
not  control. 

I  believe  there  is  now  a  general  conviction  among  the  people, 
that  this  great  and  difficult  work  is  practicable.  That  it  will  long 
remain  so,  if  the  present  state  of  things  continues,  I  have  not  the 
hardihood  to  trust.  I  look  to  this  convention  with  hope  that  it 
will  do  much  to  help  onward  this  instinctive  desire  of  the  people  of 
the  United  States  for  union  and  harmony  and  peace ;  that  it  will 
assert  strongly  and  clearly  those  principles  which  are  the  founda 
tions  of  our  government ;  that  it  will  exhibit  the  connection  between 
their  violation  and  the  present  distracted  condition  of  our  country  ; 
that  it  will  rebuke  the  violence  of  party  spirit,  and  especially  of 
that  spirit  of  hatred  which  is  as  inconsistent  with  true  love  of  our 
country  as  it  is  with  true  love  of  our  brethren ;  and  that  it  will  do 
much  to  convince  the  people  of  the  United  States  that  they  must 
act  soon,  in  the  wisest  way,  or  suffer  evils  which  they  and  their 
posterity  will  long  deplore. 

With  great  respect,  I  am  your  obedient  servant, 

B.  R.  CURTIS. 

No  material  effect  was  produced  upon  Congress  by  the 
proceedings  of  this  meeting.  Indeed,  so  little  influence  did 
they  have,  that  on  the  2d  of  March,  1867,  although  the 
civil  war  had  been  ended  for  nearly  two  years,  and  there 
was  no  remaining  disaffection  to  the  Union,  of  any  impor 
tance,  Congress,  by  a  vote  sufficient  to  make  it  a  law  over 
the  President's  veto,  passed  its  first  u  reconstruction  act." 


1867.]  RECONSTRUCTION  MEASURES.  395 

It  was  claimed  and  objected  by  the  Democratic  party,  that 
this  law  treated  ten  States  as  if  they  were  still  in  rebellion, 
and  also  as  if  they  had  been  subjugated,  as  conquered  prov 
inces,  to  the  absolute  power  of  the  government  of  the 
United  States  ;  that  the  plan  of  making  the  adult  negro 
males  voters  had  already  taken  hold  of  the  leading  spirits 
in  the  Republican  party  ;  and  that  it  was  now  determined 
that,  without  waiting  for  any  amendment  of  the  Federal 
Constitution  on  the  subject  of  suffrage  in  the  States,  negro 
suffrage  should  have  its  first  application  in  the  formation 
of  the  new  constitutions  which  the  Southern  States  were  to 
be  permitted,  under  great  restrictions,  to  establish.  It  was 
not  denied  by  the  Republican  leaders,  that  this  radical  and 
sweeping  change  in  the  whole  structure  of  Southern  society 
could  only  be  carried  out  by  military  power.  Accordingly, 
this  law,  which  was  entitled  "  An  Act  to  provide  for  the 
more  effectual  government  of  the  Rebel  States"  first  divided 
the  States  of  Virginia,  North  Carolina,  South  Carolina, 
Georgia,  Mississippi,  Alabama,  Louisiana,  Florida,  Texas, 
and  Arkansas  into  military  districts,  and  made  them  subject 
to  the  military  authority  of  the  United  States  as  there 
inafter  prescribed.  It  then  made  it  the  duty  of  the 
President  to  assign  an  officer  of  the  army  to  the  command 
of  each  district,  and  to  detail  a  sufficient  military  force  to 
enable  such  officer  to  perform  his  duties  and  enforce  his 
authority.  His  duties  were  made  to  be  to  enforce  order, 
and  to  punish,  or  cause  to  be  punished,  all  disturbers  of  the 
public  peace  and  criminals  ;  to  which  end  he  was  to  allow 
local  civil  tribunals  to  try  offenders,  or,  when  in  his  judg 
ment  it  might  be  necessary,  he  was  to  organize  military 
commissions  or  tribunals  for  the  trial  of  offenders.  All  in 
terference,  under  color  of  State  authority,  with  the  exercise 
of  military  authority  under  this  law,  was  declared  null  and 
void.  For  the  formation  of  State  governments  and  consti 
tutions,  it  was  provided  that  the  conventions  of  delegates 
should  be  elected  by  the  male  citizens  of  the  State,  twenty- 


396  MEMOIR   OF   BENJAMIN    BOBBINS   CURTIS.  [1867. 

one  years  old  and  upwards,  of  whatever  race,  color,  or 
previous  condition,  who  had  been  resident  in  the  State  for 
one  year,  and  who  had  not  been  disfranchised  for  rebellion, 
or  for  felony  at  common  law.  It  was  required  that  the 
constitutions,  to  be  framed  by  the  conventions  so  chosen, 
should  provide  that  the  elective  franchise  should  be  enjoyed 
by  all  such  persons  as  were  qualified  by  this  law  to  vote  for 
the  delegates  who  were  to  frame  them  ;  that  they  should  be 
adopted  by  a  majority  of  such  voters  ;  that  they  should  be 
submitted  to  and  approved  by  Congress ;  that,  when  ap 
proved,  the  legislatures  elected  under  them  should  adopt 
the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States.1  When  all  this  had  been  done,  and  when 
the  Fourteenth  Amendment  had  become  a  part  of  the 
Federal  Constitution,  and  not  before,  any  State  which  had 
complied  with  these  conditions  was  to  be  declared  entitled  to 
representation  in  Congress,  and  the  military  government  was 
to  cease.  But  until  the  State  had  been  so  admitted  to  rep 
resentation  in  Congress,  any  civil  government  which  might 
exist  there  was  declared  to  be  provisional  only,  and  in  all 
respects  subject  to  the  paramount  authority  of  the  United 
States  at  any  time  to  abolish,  modify,  control,  or  supersede 
it ;  and  all  elections  to  office  under  such  provisional  govern 
ment  were  required  to  be  made  by  the  same  universal  adult 
male  suffrage,  without  distinction  of  race,  color,  or  previous 
condition. 

In  opposition  to  the  Republican  theory  of  this  measure,  it 
was  contended  by  the  President,  with  the  concurrence  of 
the  Democratic  party,  that  this  enforcement  of  negro  suf 
frage  upon  the  white  people  of  those  States  was  entirely 
unconstitutional ;  that,  as  a  means  of  compelling  ten  States 
to  ratify  the  Fourteenth  Amendment  of  the  Federal  Consti 
tution,  the  "  Reconstruction  Act "  was  just  as  effectual  as 

1  This  was  the  amendment  making  all  persons,  born  or  naturalized  in 
any  State,  citizens.  It  was  not  declared  to  have  been  ratified  until  July  28, 
1868. 


1867.]  RECONSTRUCTION  MEASURES.  397 

any  exertion  of  physical  force  can  be,  and  no  more  so.  It 
was  contended  that  this  exercise  of  power  could  rest  upon 
no  legal  or  political  theory  but  that  of  a  military  conquest 
of  the  Southern  States,  —  such  a  conquest  as  gives  to  the 
conqueror  a  power  to  mould  the  institutions  and  the  social 
fabric  of  the  subjugated  people  at  his  pleasure.  No  people 
in  the  world,  it  was  said,  were  ever  subjected  to  a  more 
complete  military  government.  The  establishment  of  mili 
tary  commanders,  with  power  to  enforce  a  prescribed  mode 
of  action  by  a  people  in  framing  new  civil  institutions  and 
a  new  social  polity,  coupled  with  the  condition  that  they 
are  to  have  no  civil  government  but  a  provisional  one  until 
they  have  acted  as  they  are  required,  and  that  in  the  mean 
time  such  provisional  government  shall  be  subject  to  the 
will  of  the  power  that  tolerates  it,  was,  as  the  opponents  of 
the  Congressional  majority  held,  of  the  essence  of  military 
conquest.  When  brought  into  the  presence  of  the  Con 
stitution  of  the  United  States,  or  of  any  rational  theory  of 
American  institutions,  they  said  that  this  "  reconstruction  " 
scheme  would  not  bear  examination.  For,  it  was  reasoned, 
whether  there  was  or  was  not  a  right  of  State  secession 
from  the  Union,  in  any  constitutional  sense,  there  could  be 
no  question  that  the  people  of  every  State,  according  to  the 
fundamental  idea  of  the  American  Union,  had  the  sole  right 
to  shape  their  own  institutions  of  government  and  their  own 
social  condition,  provided  that  they  conformed  them  to  all 
actually  existing  provisions  of  the  Federal  Constitution ; 
and  that,  for  any  external  power  to  declare  in  advance  who 
should  constitute  a  part  of  the  governing  people  of  the 
State,  before  the  Federal  Constitution  had  spoken  on  the 
subject  of  the  right  of  suffrage,  was  an  act  of  mere  physical 
force,  that  could  rest  on  nothing  but  the  assumption  that 
the  people  of  that  State,  or  the  State  itself,  had  been  con 
quered  in  a  war. 

It  is  not  strange,  therefore,  that  President  Johnson,  with 
his  views,  could  not  approve  the  "  reconstruction"  measures. 


398  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1867. 

He  was  a  man  who  felt  deeply  the  obligations  of  his  official 
oath  to  preserve,  protect,  and  defend  the  Constitution  of 
the  United  States.  Whatever  his  opinions  might  be  in  re 
gard  to  the  expediency  of  negro  suffrage,  he  could  not 
reconcile  to  his  sense  of  his  constitutional  duty  a  scheme 
by  which  the  Congress  —  before  it  could  be  claimed  that 
any  amendment  of  the  Federal  Constitution  had  deprived 
the  people  of  every  State  of  the  power  to  regulate  the  right 
of  suffrage  for  themselves  —  was  to  compel  the  people  of 
ten  States  to  submit  to  the  formation  of  a  State  constitution 
and  government  based  on  the  votes  of  lately  emancipated 
slaves.1  Nor  could  he  accept  a  measure  founded,  as  he 
believed,  on  the  assumption  that  the  war  had  been  a  war 
for  conquest  and  subjugation,  and  that  the  entire  civil  gov 
ernment  of  those  ten  States  was  subject  to  the  paramount 
authority  of  the  United  States.  But  Mr.  Johnson  was  in 
the  position  of  a  President  who,  without  any  considerable 
following  in  the  two  houses  of  Congress,  can  exercise  over 
legislative  measures  only  the  power  of  his  constitutional 
"  veto."  This  he  had  to  exercise  against  a  powerful  and 
triumphant  majority,  large  enough  at  any  time  to  override 
all  his  objections,  and  who  entertained  diametrically  opposite 
views  in  regard  to  the  powers  of  the  legislative  department. 
The  idea  of  securing  a  large  mass  of  voters  in  the  South 
ern  States,  who,  from  gratitude  to  the  Northern  party,  which 
could  claim  to  have  bestowed  upon  them  their  freedom 
irom  slavery,  could  be  wielded  as  a  political  force  to  coun 
terbalance  Northern  opposition  to  that  party,  wTas  regarded 
by  the  Democrats  as  the  chief  motive  which  governed  those 
who  had  the  control  of  a  two-thirds  majority  in  both  houses. 
As  statesmen,  it  was  said,  they  ought  to  have  considered 
whether  it  was  wise  to  precipitate  upon  the  Southern  States 
a  political  antagonism  of  races ;  that  as  politicians  they 

1  It  must  be  remembered  that  the  Fifteenth  Amendment  was  not  proposed 
until  February  27,  1869,  and  was  not  declared  to  have  been  ratified  until 
March  30,  1870. 


1867.]  RECONSTRUCTION   MEASURES.  399 

might,  by  a  little  forecast,  have  taught  themselves  that, 
when  the  negroes  had  been  educated  into  some  political  in 
telligence,  leading  individuals  among  them  would  be  as 
likely  as  white  men  to  vote  according  to  their  convictions 
upon  the  political  questions  of  the  time,  either  State  or  na 
tional  ;  and  that,  as  to  the  great  mass  of  the  ignorant,  and, 
as  President  Lincoln  described  them,  "laboring,  landless, 
and  homeless  class,"  liable  to  be  swayed  by  superior  intelli 
gence  and  local  influences,  they  were  as  likely  to  be  politi 
cally  directed  by  their  former  masters  as  by  any  other  body 
of  men,  unless  a  superior  force  should  be  kept  constantly 
at  hand,  to  wield  the  power  at  the  polls  which  these  lately 
enslaved  men  of  another  race  were  to  have  put  into  their 
hands.  While,  therefore,  in  taking  military  possession  of 
the  Southern  States,  and  forcing  negro  suffrage  by  military 
power,  the  dominant  party  in  Congress  were  preparing  a  ma 
chinery  for  party  uses  that  might  work  for  a  time  according 
to  their  wishes,  it  was  urged  that  they  were  also  preparing 
a  condition  of  things  which  would  entail  upon  them  a  long 
and  indefinite  political  necessity  for  the  presence  of  a  force 
that  would  stand  between  the  two  races,  and  prevent  the 
political  defection  of  the  blacks  from  being  brought  about 
by  the  natural  influences  of  old  habits,  old  associations, 
superior  intelligence,  and  common  local  interests. 

In  other  words,  it  was  objected  that  the  Republicans 
were  preparing  a  political  antagonism  between  the  two 
races,  and  weaving  it  into  the  whole  fabric  of  political 
action  in  such  a  manner  and  to  such  an  extent  that  the 
party  objects  could  nowhere  be  accomplished  without  the 
presence  and  the  exercise  of  external  force.  But  what  this 
was  to  lead  to,  what  it  was  to  entail  upon  the  people  of  the 
South  on  the  one  hand,  and  upon  the  people  of  the  North 
on  the  other,  was  not,  as  the  Democratic  party  contended, 
sufficiently  considered  by  public  men,  who  looked  only  to 
the  immediate  political  advantage  which  they  expected  to 
derive  from  extending  the  predominance  of  their  party  into 


400  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1867. 

the  Southern  States  by  means  of  the  votes  of  negroes.  What 
a  broader  and  wiser  humanity  might  dictate,  —  what  might 
be  done,  after  freedom  had  been  properly  established,  by 
leaving  the  Southern  States  to  concede  suffrage  to  the 
negroes  when  the  slow  process  of  education  had  trained 
them  into  some  degree  of  fitness  for  its  exercise,  —  was  said 
to  have  been  fatally  overlooked  ;  that  the  negro  vote  was 
wanted  for  immediate  political  use,  in  all  its  mass  of  igno 
rance  and  degradation  ;  and  that  this  want  led  to  a  fatal  dis 
regard  of  the  constitutional  or  other  objections  to  the  mode 
of  obtaining  what  was  desired.  Such  were  the  chief  grounds 
of  the  opposition  to  the  "  reconstruction  "  measures. 

On  the  other  hand,  it  was  answered  by  the  framers  and 
promoters  of  the  "  reconstruction  "  measures,  that  slavery 
must  be  utterly  exterminated  before  the  Southern  States 
could  be  received  back  into  the  Union  ;  that  to  leave  the 
negroes,  although  in  the  legal  condition  of  freedmen,  with 
out  the  ballot,  would  be  to  leave  them  without  the  means 
of  protecting  themselves  against  a  practical  re-enslavement 
by  their  former  masters  ;  that  the  circumstances  under 
which  the  war  for  the  Union  had  been  prosecuted,  had 
devolved  on  the  government  of  the  United  States  an  im 
plied  authority  to  take  any  steps  needful  to  make  its  future 
existence  secure;  that  good  faith  towards  the  freedmen 
would  require  that  they  should  be  made  practically,  as 
well  as  legally,  secure  in  their  freedom ;  that  the  question 
what  measures  should  be  adopted  to  restore  the  Southern 
States  to  the  Union  was  a  legislative,  and  not  an  executive 
question  ;  and  that  any  seeming  irregularities  in  the  use 
of  compulsion,  whether  physical  or  moral,  to  bring  about 
the  ratification  of  amendments  of  the  Federal  Constitution, 
would  be  cured  by  the  general  assent  and  acquiescence  of 
the  people  both  in  the  North  and  the  South. 

Such  were  the  principal  differences  of  opinion  prevail 
ing,  unequally  however,  throughout  the  Northern  States,  in 
regard  to  the  measures  proper  to  be  adopted  for  the  restora- 


1867. 1  PRESIDENT   JOHNSON'S    CABINET.  401 

tion  of  the  Southern  States  to  their  normal  relations  in 
the  Union.  The  Democratic  party,  although  concurring 
in  most  of  the  President's  opinions,  were  in  no  condition 
to  render  him  an  effectual  support  in  any  controversy  with 
the  Congress,  and  they  had  no  strong  inclination  to  adopt 
Mr.  Johnson  as  a  representative  of  their  party,  although 
they  were  disposed,  to  the  extent  of  their  power,  to  protect 
him  from  what  they  considered  to  be  encroachments  upon 
his  executive  functions. 

The  antagonism  between  President  Johnson  and  the 
dominant  party  in  Congress,  which  had  begun  at  a  very 
early  period  of  his  administration,  continued  to  grow  worse 
after  his  veto  of  the  first  "  Reconstruction  Act."  That 
law  was  followed  by  two  others,  amending  and  extending 
its  provisions,  each  of  which  the  President  refused  to 
sign,  arid  each  of  which  was  passed  over  his  veto.1  This 
brings  the  history  of  the  conflict  down  to  the  month  of 
July,  1867,  in  respect  to  the  policy  to  be  pursued  towards 
the  Southern  States.  The  breach  between  the  President 
and  the  Congress  was  now  irreparable  ;  and  it  extended  to 
other  matters  besides  the  Southern  question,  and  these  were 
of  a  personal  as  well  as  political  nature. 

Mr.  Johnson  had  inherited  from  Mr.  Lincoln  a  Cabinet, 
in  which  there  was  one  man  on  whom  he  found  that  he 
could  not  rely  for  concurrence  in  his  measures  and  a  faith 
ful  support  of  his  policy.  This  was  Mr.  Stanton,  the  Sec 
retary  of  War,  whose  political  and  personal  affinities  were 
with  the  great  Congressional  majority,  which  was  opposed 
to  the  President.  According  to  previous  usage,  precedent, 
and  recognized  constitutional  construction,  the  President 
was  entitled  to  remove  any  executive  civil  officer,  and  to 
appoint  in  his  place  any  person  whom  a  majority  of  the 
Senate  would  confirm  ;  and  it  had  never  been  denied  that 

1  One  of  these  supplementary  acts  became  a  law,  March  23,  1867.     It 
established,  among  other  things,  a  registration  of  voters,  under  military  super 
vision.     The  other  became  a  law,  July  19,  1867. 
TOL.  i.  26 


402  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  [1867 

the  President  ought  to  have,  as  his  official  advisers,  and  as 
his  chief  agents  in  the  discharge  of  his  executive  duties, 
persons  in  whom  he  could  place  official  and  personal  con 
fidence.  The  members  of  the  Cabinet  which  Mr.  Johnson 
had  inherited  from  Mr.  Lincoln  were  continued  in  office 
without  any  removals ;  but  there  were  two  voluntary 
changes,  one  in  the  Post-Office  Department,  and  one  in  the 
office  of  Attorney-General.1  As  finally  arranged,  the  Cab 
inet,  with  one  exception,  were  in  entire  harmony  with  the 
President.  But  a  breach  between  the  President  and  Mr. 
Stanton  became  inevitable  from  the  first ;  and  by  the  time 
the  "  reconstruction  "  measures  of  the  Congress  had  become 
laws,  over  the  President's  vetoes,  this  breach  between  the 
President  and  the  head  of  the  War  Department  had  like 
wise  become  irreparable  and  notorious. 

In  this  state  of  affairs,  it  became  the  policy  of  the  party 
which  ruled  in  the  two  houses  of  Congress  to  restrain  the 
exercise  of  the  President's  power  of  removing  executive 
civil  officers,  who  had  been  appointed  with  the  consent  of 
the  Senate,  and  to  make  them  dependent  upon  the  Senate 

1  Mr.  Stanbery,  who  became  Attorney-General  under  President  Johnson, 
has  recently  written  to  me  as  follows  :  — 

CINCINNATI,  December  30,  1878. 

MY  DEAR  MR.  CURTIS,  —  When  upon  a  telegram  from  President  Johnson,  in 
July,  1866,  I  was  called  to  Washington,  there  were  two  vacancies  in  his  Cabinet:  in 
the  Post-Office,  by  the  resignation  of  Mr.  Denison,  and  in  the  Attorney-General's 
office,  by  the  resignation  of  Mr.  Speed,  to  the  last  of  which  I  succeeded  by  nomina 
tion  and  confirmation.  The  remaining  five  departments  were  full :  the  State  (Mr. 
Seward),  the  Treasury  (Mr.  McCullough),  the  War  (Mr.  Stanton),  the  Navy  (Mr. 
Welles),  and  the  Interior  (Mr  Harlan).  About  a  month  afterwards,  Mr.  Ilarlan 
resigned,  and  was  succeeded  by  Mr.  Browning.  The  Post-Office  Department,  upon 
the  resignation  of  Mr.  Denison,  was  carried  on  for  a  short  time  by  Mr.  Randall,  the 
Assistant  under  Mr.  Denison,  and  he  was  soon  elevated  to  the  head  of  the  Depart 
ment  by  appointment  and  confirmation. 

Mr.  Johnson  took  Mr.  Lincoln's  Cabinet  as  he  found  it.  He  made  no  removals, 
but  allowed  them  to  hold  over;  nor  did  he  by  new  nominations  attempt  any  change, 
even  after  a  difference  upon  the  policy  towards  the  South  was  developed.  It  was 
upon  their  own  motion,  —  I  speak  advisedly  as  to  Mr.  Denison  and  Mr.  Speed, — and 
without  the  slightest  disturbance  of  the  friendly  relations  and  mutual  regard  between 
the  President  and  themselves,  that  these  gentlemen  felt  that  a  sense  of  duty  and 
propriety  induced  their  voluntary  retirement.  .  .  . 

Sincerely  yours,  HENRY  STANBERY. 


1807.]  TENURE   OF   OFFICE    ACT.  403 

as  to  their  tenure  of  office.  To  accomplish  this,  Congress, 
on  the  same  day  on  which  the  first  "  Reconstruction  Act " 
was  passed,  over  the  President's  veto,  enacted  by  a  con 
stitutional  majority,  also  over  the  President's  veto,  a  law 
to  regulate  the  tenure  of  certain  civil  offices.  It  declared 
that  every  person  holding  any  civil  office  to  which  he  had 
been  appointed  by  and  with  the  advice  and  consent  of  the 
Senate,  and  every  person  who  should  thereafter  be  appointed 
to  any  such  office,  and  had  become  qualified  to  act  therein, 
was  and  should  be  entitled  to  hold  the  office  until  a  suc 
cessor  should  have  been  in  like  manner  appointed,  and  duly 
qualified,  with  certain  exceptions.  These  exceptions  were 
the  heads  of  the  seven  Executive  Departments,  who,  it 
was  enacted  in  a  proviso,  should  hold  their  offices  respect 
ively  for  and  during  the  term  of  the  President  by  whom 
they  had  been  appointed,  and  for  one  month  longer,  sub 
ject  to  be  removed  by  and  with  the  advice  and  consent  of 
the  Senate. 

Such  an  innovation  upon  long-established  usage  of  it 
self  marked  an  open  conflict  between  the  President  and 
the  legislative  department.  The  innovation  was  believed 
by  President  Johnson,  and  by  many  competent  judges 
who  were  in  no  way  interested  in  the  quarrel,  to  be 
contrary  to  a  long-established  construction  of  the  Con 
stitution,  as  well  as  highly  inexpedient.  He  therefore 
refused  to  give  his  official  approval  to  the  law ;  but  his 
refusal  was  of  no  avail.  In  order  that  the  law  might  seem 
to  obviate  the  manifest  public  inconveniences  and  mischiefs 
of  such  a  restriction  of  the  President's  power  of  removal, 
it  was  provided  that  the  President,  on  evidence  satisfactory 
to  himself,  of  misconduct  in  office,  or  crime,  incapacity,  or 
legal  disqualification  to  perform  the  duties,  might  suspend 
an  incumbent,  and  designate  some  suitable  person  to  perform 
the  duties  of  the  office  temporarily,  until  the  next  meeting 
of  the  Senate ;  but  that  he  should,  within  twenty  days  after 
the  first  day  of  the  next  meeting  of  the  Senate,  report  the 


404  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.          [1867. 

case  to  the  Senate,  with  his  reasons  for  suspending  the  officer. 
If  the  Senate  should  concur  in  those  reasons,  the  President 
might  remove  the  officer,  and  appoint  a  successor  by  and 
with  the  advice  and  consent  of  the  Senate ;  otherwise,  the 
suspended  officer  was  to  be  forthwith  reinstated  in  the  office. 
Severe  penalties  were  enacted  for  any  violations  of  this  law, 
which  were  declared  to  be  "  high  misdemeanors." 

As  the  Congress  which  passed  this  law  was  about  to  ex 
pire,  the  intent  to  leave  the  President  incapacitated  to  make 
removals  from  office  during  a  recess  of  the  Senate,  and  to 
allow  him  only  to  suspend  an  officer  during  such  recess, 
and,  even  after  the  Senate  should  be  again  in  session,  to 
have  the  removal  depend  upon  the  pleasure  of  the  Senate, 
was  apparent.  Such  an  encroachment  upon  functions  of 
the  President  hitherto  supposed  to  belong  to  him,  and 
which  had  been  exercised  more  or  less  by  all  of  his  prede 
cessors, —  such  a  subjection  of  the  President  to  the  will  of 
the  Senate  in  regard  to  the  removal  of  civil  officers,  — 
necessarily  made  President  Johnson's  position  an  extremely 
dangerous  one.  If  he  should  exercise  his  honest  judgment, 
and,  treating  this  law  as  an  unconstitutional  exercise  of 
legislative  power,  should  remove  an  officer  who  was  in 
trenched  behind  the  statute,  he  would  at  once  come  into  open 
collision  with  the  legislative  department,  and  could  only 
prevail  by  the  aid  of  the  judiciary.  If  he  should  submit  to 
the  provisions  of  the  law,  and  suspend  an  officer,  assigning 
his  reasons  for  asking  the  consent  of  the  Senate  to  his  final 
removal,  he  would  have  to  go  to  a  tribunal  which  might, 
for  purely  political  or  personal  objects,  refuse  to  recognize 
his  reasons  as  valid,  and  thus  compel  him  to  retain  an 
officer  who  might  be  animated  by  a  factious  purpose  to  ob 
struct  him  in  the  discharge  of  his  executive  duties,  or  with 
whom,  for  personal  reasons,  it  would  be  impossible  for  him 
to  hold  harmonious  official  intercourse. 

But  when  this  law  came  to  be  applied  to  the  case  of  Mr. 
Stanton,  two  questions  arose  upon  it.  First,  whether  the 


1867.]  TENURE   OF   OFFICE  ACT.  405 

members  of  the  Cabinet  who  had  been  appointed  by  Mr. 
Lincoln  were  within  its  provisions  after  Mr.  Lincoln's  term 
of  office  had  been  terminated  by  death,  and  the  President 
who  had  succeeded  him  was  holding  the  executive  office  for 
a  term  measured  by  the  unexpired  period  which  was  to 
elapse  before  the  next  regular  election  of  a  President.  The 
other  question  was,  whether,  if  Mr.  Stan  ton  was  within  the 
law,  and  could  be  removed  from  office  only  in  the  mode 
which  it  prescribed,  Congress  had  constitutional  power  to 
make  the  removal  of  civil  officers  subject  to  the  assent  of 
the  Senate. 

But  notwithstanding  that  these  questions  arose  on  the  face 
of  the  law,  when  it  came  to  be  applied  to  the  heads  of  de 
partments  who  had  been  appointed  by  Mr.  Lincoln,  President 
Johnson  was  placed  in  a  great  and  a  dangerous  dilemma. 
The  people  of  the  United  States  had  not  seen  fit  to  interpose 
and  prevent  their  Executive  from  being  thus  subjected  to 
the  will  of  Congress.  They  held,  in  general,  throughout  the 
States  of  the  North,  the  same  opinions,  and  were  influenced 
by  the  same  feelings,  as  the  controlling  majority  of  their 
representatives  in  both  houses  of  Congress,  —  feelings  and 
opinions  which  had  created  the  belief  that  the  President 
was  an  obstruction  to  the  Republican  policy,  and  that  it  was 
necessary  to  control  him.  To  what  hazards  this  conflict 
carried  the  people  of  this  country,  and  how  it  endangered 
the  constitutional  independence  of  a  co-ordinate  department 
of  their  government,  will  presently  appear. 

On  the  5th  of  August,  1867,  the  President  signified  to 
Mr.  Stanton  that  his  resignation  would  be  accepted ;  and 
on  the  same  day  Mr.  Stanton  refused  to  resign  before  the 
next  meeting  of  Congress.  On  the  12th  of  August,  the 
President,  by  an  order  in  writing,  suspended  Mr.  Stanton 
from  the  office  of  Secretary  of  War,  directed  him  to  trans 
fer  to  General  Grant,  as  Secretary  ad  interim,  the  records, 
books,  papers,  and  property  of  the  department,  and  au 
thorized  General  Grant  to  act  as  Secretary  ad  interim.  To 


406  MEMOIK   OF   BENJAMIN   BOBBINS   CURTIS.  [1868. 

this  order  Mr.  Stanton  submitted,  under  written  protest,  as 
an  act  of  u  superior  force."  The  order  was  not  designed  to 
effect  a  suspension  from  office  under  the  Tenure  of  Office 
Act ;  but  it  was  issued  by  the  President  as  an  exercise  of 
his  power  under  the  Constitution  to  suspend  any  civil  officer 
during  his  pleasure,  and  indefinitely.  On  the  12th  of 
December,  the  President  informed  the  Senate,  by  message, 
of  what  he  had  done,  in  the  hope  that  his  constitutional 
powers  would  be  recognized,  and  also  in  the  hope  that  it 
would  not  be  made  necessary  for  him  to  raise  the  question 
judicially  whether  Mr.  Stanton  was  within  the  true  con 
struction  of  the  Tenure  of  Office  Act.  This  hope  not  having 
been  realized,  the  President  was  compelled,  either  to  allow 
Mr.  Stanton  to  resume  the  duties  of  the  office,  or  to  make  a 
case  for  judicial  determination  by  removing  him.  Accord 
ingly,  on  the  21st  of  February,  1868,  the  President  issued 
an  order  removing  Mr.  Stanton,  and  appointing  General 
Thomas,  the  Adjutant-General  of  the  army,  Secretary  ad 
interim.  Some  difficulty  was  experienced  in  carrying  out 
this  order,  in  consequence  of  the  refusal  of  General  Grant 
to  surrender  the  office,  according  to  a  promise  which  the 
President  alleged  he  had  given  when  he  was  made  Secretary 
ad  interim.  These  proceedings  on  the  part  of  the  President 
constituted  one  of  the  grounds  on  which  articles  of  impeach 
ment  were  voted  against  him  by  the  House  of  Representa 
tives,  on  the  24th  of  February,  1868,  charging  him  with 
"  high  crimes  and  misdemeanors."  Another  branch  of  the 
charges  sought  to  impeach  the  President,  on  the  ground 
that  he  had  made  certain  speeches  to  popular  assemblies, 
calculated  and  designed  to  bring  the  Congress  of  the  United 
States*  into  contempt,  arid  to  impair  its  just  and  lawful 
authority.  Still  another  branch  of  the  charges  imputed  to 
the  President  an  intent  to  obstruct  the  law  "  for  the  better 
government  of  the  Rebel  States."  He  was  also  charged  Avith 
a  design  to  get  possession  of  the  money  appropriated  to  the 
military  service  of  the  United  States. 


1868.]  IMPEACHMENT   OF  THE   PRESIDENT.  407 

What  rendered  this  proceeding  formidable,  and  full  of 
peril  for  the  President,  was  that  his  political  enemies  were 
believed  to  be  in  a  condition  to  demand  his  removal  from 
office  at  the  hands  of  a  willing  majority  of  the  Senate.  It 
depended  entirely  upon  the  construction  which  two-thirds 
of  the  Senate  should  give  to  tho  Tenure  of  Office  Act,  and 
to  their  decision  on  its  constitutional  validity,  whether  he 
was  to  remain  President,  or  be  expelled  from  his  office. 
The  great  object  to  be  accomplished  by  the  impeachment 
was  to  get  rid  of  the  President,  and  to  restore  Mr.  Stanton 
to  the  War  Department.  All  the  charges  which  related  to 
other  matters  were  thrown  in  to  inflame  the  passions  of 
Senators,  and  to  intensify  the  hatred  with  which  the  Presi 
dent  was  regarded,  because  he  was  opposed  to  the  policy  of 
"  reconstruction "  which  the  dominant  party  in  Congress 
had  adopted. 

As  the  time  for  the  trial  of  the  impeachment  approached, 
it  seemed  to  the  President,  his  Cabinet,  and  his  friends, 
that  there  was  one  man  in  the  country  who  might  possibly 
stay  what  they  regarded  as  an  attempt  to  crush  the  consti 
tutional  independence  of  a  co-ordinate  department  of  the 
government.  To  him  they  appealed.  The  Constitution 
required  that  the  investigation  and  decision  of  articles  of 
impeachment  should  be  a  "  trial"  ;  that  it  should  therefore 
be  conducted  according  to  the  forms  of  judicature  ;  that,  in 
the  case  of  an  impeachment  of  the  President,  the  Chief 
Justice  of  the  United  States  should  preside  over  the  court ; 
that  the  Senate  should  be  a  court,  the  members  of  which 
should  be  under  the  sanction  of  an  oath  or  affirmation,  and 
that,  on  whatever  principles  they  might  hold  official  acts  to 
be  grounds  for  impeachment  and  removal,  there  should  be 
a  "  judgment."  By  the  nature  of  such  a  proceeding,  by 
constitutional  provision,  and  by  established  precedents,  the 
accused  Avas  entitled  to  "  the  assistance  of  counsel  for  his 
defence."  It  was  fortunate  for  the  people  of  the  United 
States  that  they  had  recognized  and  established  this 


408  MEMOIR   OF  BENJAMIN   BOBBINS   CUKTIS.  [1868. 

privilege,  alike  for  the  lowest  and  the  highest  of  supposed 
offenders. 

"  When  the  time  had  come  for  the  selection  of  counsel 
to  defend  the  President,  the  first  name  suggested  was  that 
of  Judge  Curtis,  and  no  sooner  suggested  than  accepted  in 
full  Cabinet,  and  emphatically  by  the  President  himself." 
These  are  the  words  of  a  gentleman  who  was  present.1 
Judge  Curtis  had  no  personal  acquaintance  with  Mr.  John 
son,  no  interest  in  his  political  or  personal  fortunes,  and 
nothing  but  a*  sense  of  duty  to  lead  him  to  accept  the 
responsible  position  of  leading  counsel  for  the  defence  on 
this  great  trial.  It  was  positively  distasteful  to  him,  on 
many  accounts  ;  and,  in  addition  to  this,  it  must  necessarily 
involve  serious  pecuniary  sacrifices,  for  the  President  was 
unable  to  offer  the  smallest  compensation,  and  Judge  Curtis 
was  busily  occupied  in  a  very  lucrative  practice.  The 
President  had  nothing  to  which  to  appeal,  in  the  mind  of 
his  advocate,  but  a  consciousness  that  he  might  be  able  to 
do  a  service  to  his  country,  —  and  this  was  sufficient. 

My  brother  left  Boston  immediately  for  Washington,  as 
soon  as  he  had  received  the  President's  request.  He  was 
followed  by  a  letter  from  one  of  his  friends  at  the  Boston 
bar,  which  I  cannot  refrain  from  quoting,  because  it  admi 
rably  expressed  the  feelings  of  his  professional  brethren, 
who  best  knew  the  motives  which  would  sustain  him,  and 
the  character  of  the  efforts  which  they  might  expect  from 
him. 

MR.  CAUSTEN  BROWNK  TO  JUDGE  CURTIS. 

BOSTON,  March  1,  1868. 

MY  DEAR  JUDGE,  —  I  cannot  deny  myself  the  pleasure  of 
writing  you  a  single  word  upon  the  news  we  find  in  the  morning 
papers,  —  that  you  have  been  offered  and  have  accepted  the  duty 
of  leading  counsel  for  the  President.  I  know  well  how  much 
higher  than  those  of  personal  distinction  are  the  considerations 

1  The  Hon.  Henry  Stanbery,  then  Attorney-General,  writing  to*  the 
author,  October  31,  1878. 


1868.]  ENGAGED   TO   DEFEND   THE   PRESIDENT.  409 

which  have  led  you  to  accept  the  work,  and  will  stimulate  you  in 
the  performance  of  it.  But,  at  the  same  time,  you  will  not  fail  to 
recognize,  that  your  taking  a  place  of  such  supreme  professional 
eminence  and  responsibility,  at  such  a  crisis,  must  be  matter  of 
pride  to  your  brethren  at  home.  None  of  us  doubt,  nor  do  I  sup 
pose  anybody  else  doubts,  that  the  great  duty  you  have  undertaken 
will  be  discharged  in  the  best  manner,  —  in  such  a  manner  as,  if 
possible,  to  increase  the  admiration  and  xespect  with  which  our 
whole  profession  regard  you. 

But  if  it  will  lighten  the  work,  or  brighten  the  prospect,  to 
know  with  what  sincere  personal  interest  your  "  brethren  and 
companions  "  will  follow  your  course,  in  this  great  trial,  you  can 
not  doubt  that  you  may  rely  upon  them. 

With  the  most  earnest  wishes  that  you  may  have  the  health 
and  strength  to  do  yourself  and  your  reputation  justice,  and  that 
your  efforts  may  be  powerful  to  have  law  and  right  upheld  in  this 
tremendous  public  situation,  I  am,  with  the  greatest  respect  and 

regard, 

Your  friend,  CAUSTEN  BROWNE. 

I  did  not  see  my  brother  on  his  way  through  New  York ; 
but  in  a  day  or  two  I  received  a  letter  from  him,  begging 
me  to  come  to  him.  He  said,  that  he  was  there  in  Wash 
ington  with  "  this  portentous  business  "  on  his  "  shoulders," 
and  alone.  He  wished,  he  said,  to  confer  with  me,  on  some 
of  the  constitutional  questions  which  lay  at  the  basis  of 
the  case  ;  that  the  Attorney-General  had  been  too  much 
occupied  with  his  official  duties  to  give  any  time  as  yet  to 
consultations  upon  the  President's  answer  to  the  charges.1 
I  went  to  Washington  immediately,  and  joined  him  at 
Willard's  Hotel.  He  was  engaged  in  making  the  first 
draft  of  the  President's  answer  ;  and  he  did  not  feel  sat 
isfied  with  one  of  the  constitutional  positions  on  which  he 

1  At  this  time,  the  other  gentlemen  who  took  part  in  the  President's  de 
fence —  Messrs.  Evarts  of  New  York,  Groesbeck  of  Ohio,  and  Nelson  of 
Tennessee  —  had  not  been  retained  or  had  not  arrived  in  Washington,  and  the 
Attorney-General,  Mr.  Stanbery,  was  very  busy.  To  my  great  and  painful 
regret,  my  brother's  letter  to  me  has  been  lost.  It  was  a  very  impressive  ex 
hibition  of  his  feelings  in  regard  to  the  duty  which  he  had  undertaken. 


410  MEMOIR   OF  BENJAMIN  BOBBINS   CUBTIS.          [1868. 

had  based  a  part  of  it,  or  with  the  "  traverses  "  with  which 
he  had  encountered  the  charge  which  he  was  then  consid 
ering.  After  we  had  conversed  for  some  time  on  the  con 
stitutional  question,  he  desired  me  to  take  this  particular 
charge,  and,  without  reading  his  draft,  to  draw  an  answer 
to  it.  I  consented  to  do  this,  as  a  means  of  assisting  his 
mind  to  a  third  form  of  the  answer  which  would  be  more 
satisfactory  to  him ;  for  I  saw  how  his  mind  was  working 
upon  the  subject,  and  that,  as  soon  as  he  viewed  it  through 
the  medium  of  another  person's  ideas  and  expressions,  the 
right  form  and  substance  of  the  pleading  would  at  once 
come  to  him.  There  was  to  be  a  Cabinet  meeting  that 
forenoon,  at  which  he  was  to  be  present.  It  was  to  be  his 
first  introduction  to  the  President.  The  consultation  re 
lated  to  the  substance  of  the  defence,  and  to  the  employ 
ment  of  other  counsel.  On  his  return  to  the  hotel,  he  told 
me  how  much  he  had  been  impressed  by  the  calm,  honest 
sincerity  of  Mr.  Johnson,  and  spoke  of  him  very  much  as  he 
did  in  the  letters  which  will  be  quoted  hereafter.  I  then 
gave  him  the  sketch  of  one  part  of  an  answer  which  he  had 
desired  me  to  make,  and  in  a  very  few  minutes  it  turned 
out  as  I  anticipated ;  his  mind  settled  at  once  upon  a  third 
and  better  form  than  his  own  first  draft,  or  mine.  I  did 
not  remain  in  Washington  long,  and  did  not  witness  any 
part  of  the  trial. 

After  many  preliminary  proceedings,  the  trial  of  the 
Impeachment  began  before  the  Senate,  on  the  30th  of 
March,  1868,  the  Chief  Justice  of  the  United  States  pre 
siding. 

The  Managers  of  the  Impeachment  were  of  course  first 
heard.  When  they  had  opened  their  charges  and  adduced 
their  evidence,  there  was  much  cause  for  anxiety  among 
the  friends  of  the  President  and  the  impartial  spectators ; 
for  it  was  believed  that  a  large  majority  of  the  Senators 
were  bitterly  hostile  to  him.  Judge  Curtis  was  to  open  the 
President's  defence.  lie  shared  the  anxiety  that  was  felt 


1868.]  ARGUMENT   FOR   THE   PRESIDENT.  411 

by  others  on  account  of  the  political  and  personal  hostility 
of  so  many  of  the  Senators  to  the  President ;  but  when  he 
rose  to  speak,  he  manifested  no  solicitude  whatever.  He 
knew  that  he  could  place  the  defence  of  the  President  upon 
unanswerable  grounds  of  law,  and  that,  when  this  had  been 
done,  his  acquittal  would  depend  entirely  upon  there  being 
a  sufficient  number  of  the  hostile  Senators,  who  were  capa 
ble  of  rising  above  party  and  acting  for  their  country.  Of 
his  manner  and  bearing,  and  of  the  effect  of  his  argument 
upon  those  who  heard  it,  I  should  have  preferred  to  adopt 
the  descriptions  of  others,  even  if  I  had  been  present.  As 
I  was  not,  I  have  only  to  quote  from  what  was  written  by 
witnesses  of  the  scene.  That  he  rendered  a  great  public 
service,  that  when  he  had  concluded  his  address  to  the 
Senators  the  acquittal  of  the  President  was  substantially 
secured,  and  that,  though  much  was  well  and  ably  said  after 
him  by  his  colleagues,  nothing  needed  to  be  added  to  an 
argument  which  had  exhausted  the  case,  is  the  concurrent 
testimony  of  most  of  those  who  were  present  or  who  have 
read  the  trial.  So  that,  all  things  considered,  —  the  great 
ness  of  the  occasion,  the  disastrous  consequences  that  must 
have  followed  the  conviction  of  the  President,  the  danger 
that  party  spirit  would  be  stronger  in  the  breasts  of  Sena 
tors  than  the  spirit  of  justice  and  obedience  to  constitutional 
duty,  and  the  manner  in  which  this  great  responsibility  was 
borne  by  him  on  whom  it  chiefly  rested,  and  who  was  per 
haps  best  able  to  reach  the  judgment  and  convictions  of 
the  most  conscientious  members  of  the  tribunal  who  were 
politically  opposed  to  the  accused,  —  this  argument  may  be 
considered  the  most  interesting  forensic  effort  that  is  re 
corded  in  our  annals. 

If  I  were  to  indicate  those  parts  of  it  which  are  most 
worthy  of  study  by  the  ingenuous  youth  of  our  country  who 
desire  to  understand  its  national  institutions,  I  should  point, 
first,  to  its  exposition  of  the  true  meaning  and  operation  of 
the  Tenure  of  Office  Act ;  next,  to  the  very  skilful  and  clear 


412  MEMOIR   OF  BENJAMIN  BOBBINS   CURTIS.  [1868. 

manner  in  which  the  President's  constitutional  power  to 
remove  civil  officers  was  vindicated,  so  far  as  the  defence 
of  the  President  required  that  it  should  be  ;  to  the  explana 
tion  given  of  the  President's  ministerial  duty  in  executing 
laws,  whether  passed  with  or  without  his  assent,  and  his 
right  and  duty  to  subject  any  law  which  he  deems  to  be  an 
encroachment  upon  his  constitutional  prerogatives  to  a  ju 
dicial  test ;  to  the  noble  answer  which  was  made  to  the  posi 
tion  that  the  Senate  "  were  a  law  unto  themselves" ;  and  to 
the  grand  commentary  which  was  made  upon  the  nature  of 
that  freedom  of  speech  which  is  secured  by  the  Constitu 
tion.  It  was  when  the  President's  advocate  drew  towards 
the  close  of  this  part  of  his  argument,  that  there  burst  from 
him,  in  unaccustomed  warmth,  an  indignant  protest  against 
the  standard  of  judgment  by  which  the  managers  sought 
to  impeach  the  President  for  speaking  improperly  of  the 
Congress,  in  the  following  words  :  — 

So  that  this  prohibition  in  the  Constitution  against  any  legis 
lation  by  Congress  in  restraint  of  the  freedom  of  speech  is  neces 
sarily  an  absolute  prohibition ;  and  therefore  this  is  a  case  not 
only  where  there  is  no  law  made  prior  to  the  act  to  punish  the  act, 
but  a  case  where  Congress  is  expressly  prohibited  from  making 
any  law  to  operate  even  on  subsequent  acts.  What  is  the  law  to 
be?  Suppose  it  is,  as  the  honorable  Managers  seem  to  think  it 
should  be,  the  sense  of  propriety  of  each  Senator  appealed  to. 
What  is  it  to  be?  The  only  rule  I  have  heard,  the  only  rule 
which  can  be  announced,  is  that  you  may  require  the  speaker  to 
speak  properly.  Who  are  to  be  the  judges  whether  he  speaks 
properly  ?  In  this  case  the  Senate  of  the  United  States,  on  the 
presentation  of  the  House  of  Representatives  of  the  United 
States ;  and  that  is  supposed  to  be  the  freedom  of  speech  secured 
by  this  absolute  prohibition  of  the  Constitution.  That  is  the  same 
freedom  of  speech,  Senators,  in  consequence  of  which  thousands  of 
men  went  to  the  scaffold  under  the  Tudors  and  the  Stuarts.  That 
is  the  same  freedom  of  speech  which  caused  thousands  of  heads  of 
men  and  of  women  to  roll  from  the  guillotine  in  France.  That  is 
the  same  freedom  of  speech  which  has  caused  in  our  day,  more  than 


1868.1  ARGUMENT   FOR    THE   PRESIDENT. 

once,  "  order  to  reign  in  Warsaw."  The  persons  did  not  spea 
properly  in  the  apprehension  of  the  judges  before  whom  they  were 
brought.  Is  that  the  freedom  of  speech  intended  to  be  secured  by 
our  Constitution  ? 

The  following  description  of  the  scene  when  he  rose  to 
speak,  of  his  manner  and  his  matter,  is  taken  from  one  of 
the  public  journals  of  the  time :  — 

The  Senate  and  all  the  spectators  in  the  Chamber  greeted  Mr. 
Curtis  with  a  respectable  bustle,  that  might  have  passed  for  a 
murmur  of  applause.  He  stood  at  the  end  of  the  table  provided 
for  the  President's  counsel,  nearest  the  Chief  Justice,  where  he 
commanded  a  view  of  the  whole  court.  He  was  attired,  as  usual, 
in  simple  black,  which  set  off  to  advantage  his  large  and  shapely 
proportions.  His  manner  was  an  incarnation  of  dignity,  self- 
possession,  repose.  A  more  impassive  face,  with  eyes  less  anxious 
and  inquiring,  or  more  confident,  steady,  and  serene,  was  never 
gazed  at  by  an  expectant  audience.  It  was  the  face  and  massive 
head  of  a  thoughtful  and  deliberate  jurist.  A  forehead  loftier  and 
rounder  than  would  have  been  seemly  at  the  peak  of  any  other 
figure  in  the  Chamber,  inspired  belief  in  the  quantity  of  the  brains 
behind  it,  and  something  about  the  firm,  calm  lips  of  the  man  led 
everybody  to  anticipate  that  what  they  were  to  utter  would  be 
devoid  of  any  thing  so  uncharacteristic  as  passion  or  prejudice,  or 
an  appeal  to  the  infirmities  of  his  hearers.  His  mere  presence, 
standing  there  during  the  few  seconds  which  elapsed  while  the 
occupants  of  the  floor  and  galleries  were  settling  themselves  to 
listen,  taught  to  all  sensitive  observers  a  lesson.  It  showed  how 
perfect  a  self-poise  the  consciousness  of  profound  attainments, 
knowledge  of  the  subject  of  which  he  is  about  to  treat,  and  con 
viction  of  the  justice  of  his  cause  give  to  a  speaker.  It  showed 
what  an  ineffable  charm,  so  to  speak,  exhaled  from  a  man  who 
unites  to  learning  and  experience  a  modesty  rather  left  to  be 
inferred  than  obtrusive,  and  which  was  succeeded  by  an  entire 
absence  of  arrogance  or  airs.  Mr.  Curtis's  voice  as  he  began  was 
so  low  that  it  scarcely  filled  the  Chamber,  which,  however,  imme 
diately  became  so  still  that  the  second  sentence  was  heard  in  the 
remotest  corner.  That  sentence  was  the  key-note  of  his  remarks. 
It  indicated  their  character  and  foreshadowed  the  argument.  It 


414  MEMOIR   OF   BENJAMIN  BOBBINS   CURTIS.  [1868. 

confirmed  the  respect  with  which  every  member  of  the  Court  who 
might  have  conceived  that  his  address  would  have  been  opened  by 
an  accusation,  just  or  unjust,  heard  him.  Within  a  few  moments 
afterwards  he  had  fairly  entered  into  the  merits  of  the  case,  and 
had  made  one  of  a  series  of  points  against  the  impeachment  which, 
as  they  were  successively  presented  in  the  course  of  his  remarks, 
excited  the  admiration,  if  they  did  not  shake  the  partisan  purpose, 
of  the  President's  worst  enemies.  Soon  his  tones  sought  a  higher 
level,  and  his  hands,  clasped  at  first  behind  him  or  resting  on  the 
edge  of  the  table  before,  were  raised  to  assist  the  persuasion  of 
what  he  said,  with  forceful  gestures.  It  became  evident,  to  those 
who  were  not  already  familiar  with  his  style  of  delivery,  that  Mr. 
Curtis  was  not,  in  the  highest  sense,  an  orator.  He  spoke  from 
voluminous  notes,  and  frequently  consulted  and  read  from  the 
books  of  reference  beside  him.  The  clearness  of  his  statements, 
the  accuracy  of  his  logic,  and  the  precision  and  steadiness  with 
which  he  advanced  from  every  premise  he  established  to  conclu 
sions,  needed,  in  fact,  no  fiery  oratory  to  enhance  the  effect.  If 
his  tones  did  not  often  thrill  the  heart,  they  reached  the  brain. 
They  were  earnest,  if  not  eloquent,  and  there  was  a  certain  fasci 
nation  in  their  monotony.  They  bore  a  heavier  burden  of  matter 
than  the  chaff  blown  from  the  lips  of  many  windv  elocutionists, 
and  that  is  one  reason  why  their  equable,  repressed  accents  were 
tolerable.  Two  or  three  times  Mr.  Curtis  indulged  a  fervor  which 
gave  to  his  aspect  an  inspiring  majesty  and  glow.  Then  his  voice 
had  the  tremor  of  a  water-fall.  Then  his  form  shook  like  a  pine; 
but,  as  a  pine  recovers  itself  after  a  gust,  and  stands  erect  and 
stately  as  before,  so,  in  an  instant  after  these  noble  outbursts,  the 
speaker  of  to-day  was  seen  composed  and  motionless,  as  if  every 
hot  impulse  in  his  nature  had  been  thrust  back  beaten  into  its  lair. 
After  Mr.  Curtis  had  spoken  about  two  hours,  a  recess  of  twenty 
minutes  was  taken.  He  then  resumed  his  argument  and  continued 
until  half-past  three,  P.  M.,  when  the  court  adjourned.  It  is  gener 
ally  conceded  that  the  speech,  of  which  I  have  not  attempted  to  give 
you  any  synopsis,  is  so  far  an  original  and  invincible  effort.  It  has 
made  an  immense  impression  here  in  Washington,  and  there  are 
applications  by  hundreds,  who  cannot  be  admitted,  to  hear  the 
conclusion  of  it  to-morrow.  When  it  is  finished,  as  it  is  expected 
to  be  about  two  o'clock,  the  President's  counsel  will  begin  to  sub 
mit  documentary  and  oral  testimony  for  the  defence 

J.  B.  S. 


1868.]  ARGUMENT   FOK   THE    PRESIDENT.  415 

This  graphic  account  came  from  the  pen  of  an  accom 
plished  journalist,  accustomed  to  view  men  and  things  with 
a  practised  eye,  and  well  able  to  appreciate  the  intellectual 
and  moral  characteristics  of  such  a  performance.1  One 
other  description,  from  the  pen  of  a  lady  who  was  among 
the  audience,  is  all  that  I  need  quote.  It  was  written  to 
Mrs.  Curtis,  immediately  after  the  close  of  the  speech. 

WASHINGTON,  Friday,  April  10. 

MY  DEAR  MRS.  CURTIS,  —  I  have  just  returned  from  the  Senate- 
Chamber,  filled  with  delight  and  admiration  at  Mr.  Curtis's  great 
argument.  For  power  and  condensation  of  thought,  and  for  dig 
nity  and  persuasiveness  of  delivery,  it  was  indeed  a  glorious  effort. 
It  is  so  very  infrequently  that  women  have  such  an  opportunity, 
that  I  cannot  tell  you  how  we  have  enjoyed  it.  Even  political 
antagonists  confess  the  greatness  of  the  argument:  indeed,  it  seems 
to  bring  back  the  times  when  "  there  were  giants  on  the  earth." 
You  will  have  later  and  more  full  accounts,  but  I  cannot  deny 
myself  the  pleasure  of  being  the  first  female  reporter  to  you.  With 
much  sympathy,  in  which  my  husband  and  my  daughters  unite 
very  cordially, 

I  am  very  hastily  and  sincerely  yours, 

HARRIET  B.  LORINQ. 

It  remains  for  me  now  to  give  two  private  letters,  written 
by  my  brother  during  the  trial :  — 

To  MR.  TICKNOR. 

WASHINGTON,  March  26,  1868. 

MY  DEAR  UNCLE,  —  I  would  gladly  comply  at  once  with  your 
request  for  copies  of  the  report  of  the  trial  of  the  President,  but  at 
present  I  cannot.  There  is  a  government  report,  which  is  fur 
nished  day  by  day  to  each  of  the  counsel.  This  copy  I  cannot 
spare,  and  I  know  not  how  to  procure  others.  There  will  be,  of 
course,  one  or  more  authentic  editions  for  sale.  The  trial  has  not 
yet  advanced  far  enough  to  bring  them  forth.  I  will  be  watchful 
and  supply  you  if  I  can. 

1  The  writer  of  this  letter  was  Mr.  J.  B.  Stillson,  at  that  time  attached  to 
"  The  World,"  as  a  correspondent. 


416  MEMOIR    OF    BENJAMIN   BOBBINS    CURTIS.  11868. 

As  to  the  case  itself,  I  have  very  little  to  say.  There  is  not  a 
decent  pretence  that  the  President  has  committed  an  impeachable 
offence.  "  The  party  "  are  in  a  condition  to  demand  his  removal 
from  power,  and  do  demand  it.  What  the  result  is  to  be,  you  can 
imagine  as  well  as  I  can.  Do  not  listen  to  any  rumors  about  the 
President's  resignation.  No  one  connected  with  the  case  has 
thought  of  advising  it,  and,  if  every  one  advised  it,  the  President 
would  not  listen  to  such  advice.  Pie  is  calm,  cheerful,  and  self- 
sustained,  lie  firmly  believes  he  has  been  and  is  right,  he  knows 
he  is  honest  and  true  in  his  devotion  to  the  Constitution.  If  he  is 
expelled  from  his  office,  he  will  march  out  with  a  firm  step  and  a 
strong  heart. 

I  feel  grateful  to  Aunt  and  yourself  for  your  kindness  to  my 
wife  in  my  enforced  absence.  It  is  very  injurious  to  my  interests, 
and  sorely  against  rny  wishes  and  tastes  and  feelings,  to  be  here. 
I  cannot  help  it,  and  must  do  what  I  am  able  to  stand  up  against 
this  great  public  wrong.  Yours  always, 

B.  R.  CURTIS. 

To  THE   SAMP:. 

WASHINGTON,  April  10,  1868. 

DEAR  UNCLE,  —  I  concluded  my  argument  to-day  at  two  and 
a  half,  P.  M.,  and  came  to  my  lodgings,  leaving  my  associates  to  go 
on  with  the  evidence  for  the  couple  of  hours  of  the  session  which 
remained.  I  had  an  attentive  audience  from  the  Senate,  and  from 
the  crowded  galleries  and  aisles.  How  much  permanent  and  useful 
effect  I  have  produced,  I  have  no  means  of  judging.  Washington 
is  full  of  rumors,  most  of  which  are  false,  and  all  of  so  doubtful 
authority  that  nothing  can  be  predicated  of  them. 

Please  do  not  read  the  very  incorrect  reports  of  my  argument 
which  are  in  the  newspapers.  They  mortify  me.  I  will  send  you 
in  "  The  Globe  "  a  correct  copy,  and  before  I  leave  here  I  shall  be 
able  to  supply  you  with  reports  of  the  trial  which  are  authentic, 
or  rather  to  cause  them  to  be  supplied,  for  I  do  not  expect  to 
remain  here  till  the  case  is  ended.  I  shall  come  home  when  the 
evidence  is  closed  and  the  speeches  begin.  The  case  will  be 
effectively  and  actually  settled  before  that  time.  There  are  from 
twenty-two  to  twenty-five  Senators,  who  began  the  trial  with  a  fixed 
determination  to  convict.  I  have  no  reason  to  suppose  any  one  of 
them  is  shaken,  or  will  be.  About  twelve  to  fifteen  of  the  dominant 


1868.]  THE   PRESIDENT   ACQUITTED.  417 

party  had  not  abandoned  all  sense  of  right,  and  given  themselves  over 
to  party  at  any  cost.  What  will  become  of  them  I  know  not,  but 
the  result  is  with  them.  The  President  himself  preserves  his  calm 
ness,  and  to  a  great  extent  his  equanimity.  My  respect  for  the  moral 
qualities  of  the  man  is  greatly  enhanced  by  my  knowledge  of  him. 
He  is  a  man  of  few  ideas,  but  they  are  right  and  true,  and  he  could 
suifer  death  sooner  than  yield  up  or  violate  one  of  them.  He  is 
honest,  right-minded,  and  narrow-minded ;  he  has  no  tact,  and 
even  lacks  discretion  and  forecast.  But  he  is  as  firm  as  a  rock ; 
and  if  he  should  be  convicted,  he  will  go  out  with  a  firm  reliance 
that  the  time  will  come  when  "  black  lines  "  will  be  drawn  around 
that  Senatorial  record,  by  the  command  of  the  people  of  the  United 
States.  I  have  so  little  time  to  write  letters,  that  T  wish  you  would 
show  this  one  to  my  wife. 

Yours  always, 

B.  R.  CURTIS. 

The  future  necessity  for  "  black  lines,"  to  expunge  a  re 
cord  of  conviction  did  not  arise.  On  the  26th  of  May, 
1868,  after  arguments  by  the  other  counsel  for  the  Presi 
dent,  and  a  reply  by  the  managers,  the  proceedings  were 
brought  to  a  close.  The  two  principal  articles,  charging  an 
intent  to  violate  the  Constitution  and  the  Tenure  of  Office 
Act,  by  the  removal  of  Mr.  Stan  ton  from  the  War-  Depart 
ment  and  the  appointment  of  General  Thomas  as  Secretary 
ad  interim,  were  alone  voted  upon.  The  votes  were  35 
yeas,  and  19  nays  ;  and  as  the  requisite  two  thirds  had 
not  voted  "  guilty,"  a  judgment  of  acquittal  was  entered. 
Of  the  twelve  or  fifteen  Republican  Senators  with  whom 
Judge  Curtis  said  the  result  rested,  seven  voted  "  not 
guilty."  l 

1  The  Republican  Senators  who  voted  to  acquit  the  .  President  were 
Messrs.  Fessenden,  Fowler,  Grimes,  Henderson,  Ross,  Trumbull,  and  Van 
Winkle  (seven).  The  Democratic  Senators  voting  for  his  acquittal  (twelve 
in  number)  were  Messrs.  Bayard/  Buckalew,  Davis,  Dixon,  Doolittle,  Hcn- 
dricks,  Johnson,  McCreery,  Norton,  Patterson  of  Tennessee,  Saulsbury, 
and  Vickers.  One  of  the  Republican  Senators  said  afterwards,  when 
taxed  with  want  of  fealty  to  his  party,  "Judge  Curtis  gave  us  the  law, 
and  we  followed  it."  On  the  day  following  Judge  Curtis's  opening 
VOL.  i.  27 


418  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1868 

JUDGE  THOMAS  TO  MR.  TICKNOR. 

BOSTON,  May  13th,  [1868.] 

MY  DEAR  SIR,  —  It  will  give  me  very  great  pleasure  to  dine 
with  you  on  Saturday,  and  to  meet  Judge  Curtis.  The  Judge  has 
discharged  a  great  public  duty  with  signal  fidelity  and  ability. 
We  owe  him  a  large  debt,  not  only  as  citizens  of  the  country,  but 
as  sons  of  Massachusetts,  that  he  has  saved  us  from  the  fathomless 
infamy  into  which  the  course  of  our  Managers  and  Senators  would 
have  otherwise  sunk  her  good  name.  Our  culture,  forensic  power, 
and  manliness  have  not  all  gone.  We  have  an  estate  at  least  by 
the  Curtis-y. 

With  great  respect,  very  faithfully  yours, 

BENJ.  F.  THOMAS. 

On  the  12th  of  March,  Mr.  Stanbery  resigned  the  office 
of  Attorney-General,  in  order  to  devote  his  energies  exclu 
sively  to  the  defence  of  the  President.  Immediately  after 
his  acquittal,  the  President,  of  his  own  motion,  renominated 
Mr.  Stanbery  for  the  same  office  ;  but  the  Senate,  with  little 
delay,  refused  to  confirm  the  nomination.  On  the  8th  of 
June,  Mr.  Stanbery  left  Washington  for  his  home  in  Ohio. 

On  the  5th  of  June,  the  President  sent  a  telegraphic 
despatch  to  Judge  Curtis,  asking  if  he  would  accept  the 
office  of  Attorney-General.  It  was  with  no  purpose  of 
rewarding  or  compensating  him  for  his  great  services  that 
the  President  made  this  offer.  He  was  really  embarrassed 
in  finding  a  suitable  person  to  whom  he  could  tender  this 
place  in  his  Cabinet,  after  the  Senate  had  rejected  Mr. 
Stanbery  ;  and  he  naturally  turned  to  the  man  whom  he 
thought  the  most  suitable,  and  who  was  among  those  who 
could,  with  political  consistency,  support  the  course  of  his 
administration.  The  following  was  the  answer  returned, 
by  letter,  as  soon  as  Judge  Curtis  saw  the  President's 
despatch :  — 

argument,  another  Republican  Senator  asked  a  political  friend  if  he  had 
heard  it.  "No,"  was  the  reply,  "I  was  absent;  but  I  have  read  it,  and 
I  wish  I  hadn't." 


1868.]  DECLINES    OFFICE.  419 

To  PRESIDENT  JOHNSON. 

BOSTON,  June  8,  1868. 

MR.  PRESIDENT,  —  On  my  return  to  Boston  this  evening,  after 
an  absence  of  four  days  in  New  York,  I  found  your  telegram  of 
the  5th  instant,  asking  if  I  would  accept  the  office  of  Attorney- 
General.  My  family  being  in  the  country,  no  one  here  had  opened 
the  despatch,  and  it  was  delivered  to  me  on  my  arrival  at  my  hotel. 
The  answer,  which  I  immediately  sent,  you  doubtless  received. 

Rut  I  desire  to  express  to  you  my  gratitude  for  the  inquiry  you 
made,  and  my  regret  that  it  is  not  in  my  power  to  accept  the  hon 
orable  and  important  office  to  which  it  relates.  You  will  not 
expect  me  to  enter  into  any  detailed  reasons  for  this  conclusion  ; 
but  I  hope  you  will  allow  me  to  say  that  there  is  no  public  office 
which  I  shall  ever  be  induced  to  accept  willingly,  and  that  I  shall 
never  accept  one  save  from  such  imperative  commands  of  duty  as 
I  cannot  resist.  And  even  if  my  resolve  concerning  this  subject 
were  not  fixed,  as  it  is,  my  duties  to  my  clients  who  have  exten 
sively  trusted  and  relied  on  me,  and  whose  interests  might  mate 
rially  suffer  by  my  withdrawal  thus  suddenly  from  their  service,  and 
the  condition  and  affairs  of  my  family,  would  necessarily  preclude 
me  from  returning  an  affirmative  answer  to  your  question. 

I  desire  to  add,  that,  though  I  have  had  very  slight  connection 
with  the  politics  of  the  country,  and  they  are  now  in  a  condition 
when  one  would  not  willingly  plunge  into  them,  there  has  been 
nothing  in  your  general  course  of  political  action  which  I  do  not 
approve  of ;  that  I  am  not  in  the  least  degree  influenced  to  answer 
your  question  negatively  by  any  thing  which  I  apprehend  in  the 
future  policy  or  measures  of  your  administration. 

With  great  respect,  I  am  your  obedient  servant, 

B.  R.  CURTIS. 


420  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  f!869. 


CHAPTER   XIV. 

1869-1874.    • 

Professional  Duties.  —  Letters  to  Mr.  Ticknor  and  William  E.  Curtis. — 
Death  of  Mr.  Ticknor.  —  Deaths  of  Young  Children.  —  A  Short  Tour  in 
Europe.  —  Letter  from  London  to  G.  T.  Curtis.  —  Declines  an  Appoint 
ment  as  Counsel  for  the  United  States  at  the  Geneva  Arbitration.  —  Let 
ter  to  the  Hon.  Reverdy  Johnson  concerning  the  Office  of  Chief  Justice 
of  the  United  States.  —  Lectures  at  the  Cambridge  Law  School.  —  Death 
of  his  eldest  Daughter.  —  Letter  to  G.  T.  Curtis.  —  Continued  Profes 
sional  Labor. —  Declining  Health. — Death  at  Newport.  —  Independence 
of  Character. 

THE  last  five  years  of  my  brother's  life  were  years  of 
great  professional  labor,  checkered  by  great  domestic  sor 
rows.  His  engagements  in  the  Supreme  Court  of  the 
United  States,  and  his  occupations  at  home,  were  very 
weighty.  In  these  five  years  he  argued  twenty-two  causes 
in  the  Supreme  Court,1  and  twelve  at  the  Law  Terms  of 
the  Supreme  Court  of  Massachusetts,2  besides  many  others 
in  the  Circuit  Courts  of  the  United  States,  while  he  also 
wrote  forty-five  opinions,  as  chamber  counsel,  on  a  great 
variety  of  important  questions.  The  following  letter  gives 
token  of  the  constant  demands  upon  his  energies. 

To  MR.  TICKNOR. 

21  MARLBORO'  STREET,  Feb.  5,  1869. 

DEAR  UNCLE,  —  I  came  home  from  Washington  on  Tuesday 
evening,  and  hoped  to  have  a  little  rest ;  but  I  am  again  summoned, 
and  must  leave  to-morrow  morning.  I  have  not  left  my  house  since 

1  Embraced  in  Wallace's  Reports,  from  the  10th  to  the  19th  volumes 
inclusive. 

2  Embraced  in  the  Reports  of  that  court,  from  the  105th  to  the  112th 
Massachusetts,  inclusive. 


1869.]  LETTER   TO   W.  E.  CURTIS.  421 

my  return  except  in  a  close  carriage,  for  I  have  a  bad  cold ;  other 
wise  I  should  have  been  to  see  you.  Mr.  Gardner  was  kind 
enough  to  take  my  turn  of  the  Club  on  the  29th  of  January.  I 
should  have  it  on  the  12th  instant.  But  I  doubt  if  I  shall  be  here 
in  season.  I  hope  I  may  be,  for  I  think  my  present  call  to  Wash 
ington  will  not  detain  me  through  the  whole  week.  Still,  if  it 
were  certain  that  I  could  return  in  season,  I  should  not  like  to 
leave  the  care  of  this  dinner  on  my  wife,  who  is  far  from  well,  and 
no  longer  has  Robert  to  relieve  her  from  all  thought  about  it. 
May  I  rely  on  you  to  take  the  Club  and  fill  my  place  ?  In  my 
present  roving  life,  I  am  not  a  fit  person  to  be  a  member  of  any 
"  stated  congregation "  ;  and  another  year  I  will  order  things 
differently.1 

I  have  passed  some  weeks  at  Washington,  among  the  men  who 
.tre  supposed  to  know  most  of  public  affairs.  As  to  General 
Grant,2  I  am  satisfied  that  he  has  kept  his  own  counsels,  whatever 
they  may  be.  Whether  he  has  the  wisdom  to  know  that  it  de 
pends  on  him  to  submit  to,  or  resist,  a  merely  centralized  parlia 
mentary  government,  and  if  he  has  the  wisdom  whether  he  has  the 
power  to  resist  it,  I  do  not  know.  .  .  .  General  Grant  knows  that  it 
was  not  the  Republican  party  which  has  put  him  in  power,  but  his 
hold  on  the  country  which  has  retained  them  in  power.  But,  if 
he  appreciates  his  position,  he  also  knows  that  the  legislative  power, 
having,  with  the  acquiescence  of  the  country,  conquered  one  Presi 
dent,  and  subdued  the  Supreme  Court,  and  filled  all  the  offices  with 
their  creatures  dependent  on  their  will,  will  not  subside  into  that 
coequal  position  assigned  to  them  by  the  Constitution  without  a 
desperate  struggle.  He  is  a  bold  President  who  enters  on  it. 
He  must  have  great  qualities  and  the  safest  and  ablest  advisers  to 
succeed.  I  hope  he  may  try  it.  I  need  not  say  I  hope  he  may 
succeed.  Yours  always, 

B.  R.  CURTIS. 

To  WILLIAM  E.  CURTIS,  ESQ.,  OF  NEW  YORK. 

21  MARLBORO'  STREET,  March  23,  1870. 

MY  DEAR  MR.  CURTIS,  —  Since  I  received  your  kind  letter 
with  its  enclosure,  I  have  been  so  afflicted  with  a  catarrh,  that  I 

1  For  a  brief  account  of  this  dinner-club,  see  Life  and  Letters  of  George 
Ticknor,  Vol.  II.  p.  445. 

2  Elected  President  in  November,  1868,  and  was  to  be  inaugurated  March 
4,  1869. 


422  MEMOIR    OF    BENJAMIN  BOBBINS   CURTIS.  [1870 

have  neither  been  to  my  office  nor  into  court  except  a  few  times 
on  the  most  urgent  occasions.  Latterly  I  am  better,  and  I  hope  to 
go  along  as  usual  ;  but  my  correspondence  has  suffered,  and  among 
other  things  I  have  not  answered  your  kind  letter,  for  which  I 
thank  you  much. 

I  have  no  doubt  the  Connecticut  people  of  our  name  came  from 
the  same  William  and  Sarah  Curtis  of  Roxbury  from  whom  I  am 
descended.  I  inclose  a  memorandum  of  the  pedigree,  so  far  as  you 
are  interested  in  it.  As  for  arms  and  crests,  I  imagine  that  they 
paid  very  little  attention  to  them,  and  took  no  care  to  use  or 
transmit  them,  whatever  their  right  may  have  been.  They  were 
farmers  at  first,  upon  land  granted  to  the  first  settler,  William, 
and  afterwards  his  descendants  engaged  in  all  usual  pursuits  ; 
but  I  think  there  has  been  no  generation  of  them  which  has  not 
had  one  or  more  graduated  at  Harvard  College,  and  usually  more 
than  one. 

They  have  continued  to  own  parts  of  the  land  granted  to  them 
in  1632  "on  Stony  Brook,"  and  would  doubtless  have  continued  to 
own  much  more,  if  from  farms  the  land  had  not  become  building- 
lots  in  a  populous  neighborhood.  So  far  as  I  know,  what  you  say 
of  your  part  of  the  family  is  quite  applicable  to  the  rest  of  them. 
They  have  been,  hereabouts,  a  sturdy  race  of  people,  without  any 
claims  to  great  refinement,  but  with  just  claims  to  honesty,  kindli 
ness,  and  the  most  unmistakable  determination  to  have  their  own 
way.  I  should  say  this,  —  that  the  first  William  and  Sarah,  who 
came  over  from  the  county  of  Essex  in  1632,  must  have  had  a 
great  deal  of  that  valuable  quality ;  for  surely  their  descendants 
have  got  from  somewhere  strong  wills.  Dr.  Walker,  in  one  of  his 
sermons,  said,  '•  Knowledge  is  not  power,  will  is  power."  If  so,  we 
are  a  powerful  race  of  people ;  for,  right  or  wrong,  all  those  of  our 
race  whom  I  have  known  have  had  enough  of  it.  I  may  add,  that 
in  general,  and  so  far  as  I  know,  the  descendants  here  have  been 
useful  and  respectable  people. 

I  enclose  a  memorandum,  entirely  authentic,  as  to  the  earlier 
genealogy,  and  am,  with  great  regard, 

Your  kinsman  and  friend, 

B.  R.  CURTIS. 

P.  S.  —  Accidentally,  the  seal  of  your  letter  was  destroyed.  If 
you  will  send  me  an  impression  of  it,  I  should  like  it,  and  if  you 


1870.]  OPINIONS    GIVEN   AT   THE   BAR.  423 

are  willing  to  put  your  "  arms "  into  the  hands  of  some  one  who 
will  draw  aud  color  it  for  a  fee  which  I  will  pay,  my  children 
would  be  glad  to  see  it. 

B.  R.  C. 

As  belonging  to  this  period,  I  select  some  opinions  upon 
interesting  subjects,  given  in  the  course  of  his  practice.1 

ILLINOIS   TWO  PER   CENT   CLAIM. 
OPINION. 

I  have  been  requested  to  examine  the  claim  of  the  State  of 
Illinois  to  be  paid  by  the  United  States  two  per  cent  of  what  has 
been  received  by  the  United  States  from  the  sales  of  public  lands 
within  that  State  made  after  its  admission  to  the  Union. 

This  claim  grows  out  of  the  sixth  section  of  the  act  of  April  18, 
1818,  for  the  admission  of  that  State  to  the  Union,  on  an  equal 
footing  with  the  original  States.  That  section  is  as  follows  :  — 

"  That  five  per  cent  of  the  net  proceeds  of  the  lands  lying  within 
such  State,  and  which  shall  be  sold  by  Congress,  from  and  after  the 
first  day  of  January,  one  thousand  eight  hundred  aud  nineteen, 
after  deducting  all  expenses  incident  to  the  same,  shall  be  reserved 
for  the  purposes  following,  viz.  :  two  fifths  to  be  disbursed,  under 
the  direction  of  Congress,  in  making  roads  leading  to  the  State  ; 
the  residue  to  be  appropriated  by  the  Legislature  of  the  State,  for 
the  encouragement  of  learning,  of  which  one  sixth  part  shall  be 
exclusively  bestowed  on  a  college  or  university." 

It  is  stated  as  matter  of  fact,  that  a  system  of  internal  improve 
ments  was  begun  under  the  authority  of  Congress,  and  large  ex 
penditures  were  made  thereon  in  the  States  of  Ohio  and  Indiana, 
which  resulted  in  the  creation  of  roads  in  those  States ;  and  other 
large  expenditures  were  made  for  similar  purposes  within  the  State 
of  Illinois,  which  did  not  result  in  the  completion  of  any  useful  or 
practicable  roads  ;  and  that  while  matters  were  in  this  condition 
Congress  finally  abandoned  its  original  intention  and  policy  of 
creating  a  national  road  from  Wheeling  on  the  Ohio  River  to  the 
Mississippi  River,  and  all  work  thereon  was  ended,  and  those  parts 

1  It  must  be  understood  that  the  opinions  embraced  in  this  and  in  the 
tenth  and  twelfth  chapters  are  but  a  small  proportion  of  the  whole  number 
given  between  the  years  1857  and  1874. 


424  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [1870. 

of  the  road  which  had  been  built  and  made  practicable  in  Ohio  and 
Indiana,  that  is  to  say,  the  roads  contemplated  by  the  act  of  1818 
to  be  built  out  of  the  reserved  two  per  cent,  "leading  to  the  State 
of  Illinois,"  were  by  the  United  States  granted  to  the  States  in 
which  they  lay,  upon  new  contracts  and  conditions,  by  which  those 
States  became  the  owners  thereof,  by  which  these  States  were 
enabled  to,  and  did,  in  point  of  fact,  impose  a  toll  for  the  use  of  the 
same  as  being  the  absolute  property  of  each  of  them. 

Before  considering  what  is  the  true  meaning  and  effect  of  the 
subsequent  legislation  of  Congress  in  1855  and  1857,  I  think  it 
most  material  to  observe  that,  when  these  last-mentioned  acts  were 
passed,  the  United  States  had  clearly  failed  to  keep  and  perform 
the  compact  contained  in  the  sixth  section  of  the  act  of  1818,  ad 
mitting  the  State  of  Illinois  to  the  Union. 

It  must  be  borne  in  mind  that  the  agreement  of  the  United 
States  to  disburse  two  per  cent  of  receipts  from  the  sales  of  public 
lands  within  the  State  of  Illinois  "  in  making  roads  leading  to  the 
State,"  had  a  sufficient  and  corresponding  consideration  in  the 
stipulation  of  the  State  not  to  tax  the  public  lands  in  the  hands 
of  purchasers  or  patentees,  until  after  the  lapse  of  certain  fixed 
periods  ;  that  this  agreement  to  reserve  two  per  cent  of  the  sales 
of  public  lands,  and  expend  what  was  thus  reserved  in  the  public 
works  described,  had  all  the  elements  of  a  contract ;  that  it  created 
a  trust  when  the  designated  moneys  were  received  ;  and  that  be 
fore  the  acts  in  question  were  passed,  the  United  States  had  not 
merely  failed  to  perform  that  contract  and  execute  the  trust,  but 
that  Congress  had,  before  the  passage  of  the  act  of  1857,  fixed  the 
fact  finally  and  irrevocably  that  the  contract  would  not  be  per 
formed  and  the  trust  would  not  be  executed. 

It  is  true  that  what  had  been  done  upon  the  roads  in  Ohio  and 
Indiana  might  possibly  have  been  taken  as  a  compliance  with  the 
contract  and  an  execution  of  the  trust,  if  Congress  had  not  by  its 
acts  rendered  it  impossible  to  consider  the  construction  of  these 
roads  in  Ohio  and  Indiana  an  execution  of  the  trust  or  a  perform 
ance  of  the  contract.  Having  caused  them  to  be  built,  Congress 
might  have  permanently  dedicated  them  to  a  free  public  use  if  they 
really  were  such  roads  leading  to  the  State  of  Illinois  as  were  con 
templated  by  the  act  of  1818,  and  the  United  States  might  have 
rested  in  the  conclusion  that  they  had  thus  performed  their  con 
tract  and  executed  their  trust.  But  it  is  also  true  that  Congress 


1870.]  OPINIONS   GIVEN  AT  THE   BAR.  425 

might,  from  some  change  in  its  policy,  make  such  appropriation 
of  these  roads  as  to  be  wholly  inconsistent  with  their  creation 
being  a  compliance  with  the  contract,  and  an  execution  of  the 


'& 
trust. 


After  a  careful  consideration  of  the  action  of  Congress  upon  the 
subject  of  this  road  in  Ohio  and  Indiana,  the  only  satisfactory  con 
clusion  I  can  come  to  is,  that  when  Congress  transferred  the  road 
to  the  States  of  Ohio  and  Indiana,  with  power  to  levy  a  toll  thereon, 
subject  only  to  certain  restrictions  in  favor  of  the  United  States, 
and  abandoned  the  further  prosecution  of  the  work,  it  did  thereby 
abandon  the  performance  of  the  contract,  and  did  finally  declare 
that  the  trust  to  expend  two  per  cent  of  the  receipts  from  sales  of 
public  lands  in  the  State  of  Illinois,  for  the  purposes  and  in  com 
pliance  with  the  contract  designated  in  the  act  of  admission  of  the 
State,  would  not  be  executed. 

And  this  I  believe  to  have  been  the  actual  state  and  condition 
of  the  relative  rights  and  obligations  of  the  United  States  and  of 
the  State  of  Illinois  at  the  time  of  the  further  legislation  now  in 
question,  in  1 857. 

The  condition  of  the  relative  rights  and  obligations  of  the  State 
and  the  United  States  was  this,  —  the  United  States,  for  a  valuable 
and  adequate  consideration,  had  agreed  to  expend  two  per  cent  of 
the  receipts  of  the  sales  of  public  lands  within  the  State  of  Illinois 
"  in  making  roads  leading  to  the  State." 

The  United  States  had  begun  to  execute  the  trust.  It  had  built 
roads  in  Ohio  and  Indiana.  But  from  a  change  in  the  public  policy 
of  Congress,  instead  of  allowing  those  roads  when  built  to  remain 
free  and  open  for  public  use,  the  United  States  transferred  them  to 
Ohio  and  Indiana  as  the  several  property  of  each  of  those  States, 
with  power  to  impose  tolls  for  their  use.  I  cannot  think  this  was 
a  fair  and  full  compliance,  or  indeed  any  compliance  at  all,  with 
the  contract  and  the  trust  under  which  the  United  States  received 
these  moneys. 

Under  the  contract  certain  moneys,  in  which  the  State  of  Illinois 
must  be  deemed  to  have  had  an  interest,  were  reserved  to  build 
roads  leading  to  that  State.  Nothing  is  said,  and  certainly  nothing 
can  be  implied,  leading  to  the  conclusion  that,  when  built,  they  could 
not  be  used  freely,  and  without  charge.  The  United  States  reserve 
no  right  to  themselves  to  impose  a  toll  for  the  use  of  the  roads  so 
built  out  of  the  moneys  which  Illinois  agrees,  for  a  valuable  con- 


426  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1870. 

sideration,  should  be  appropriated  to  build  them.  Still  less  do  the 
United  States  reserve  any  right  to  convey  the  roads  to  Ohio  and 
Indiana,  and  enable  those  States  to  control,  manage,  discontinue, 
and  levy  tolls  on  such  roads.  And  when  this  was  done,  in  my 
judgment,  the  United  States  finally  abandoned  the  contract,  arid 
finally  and  decisively  refused  to  execute  the  trust. 

Such  seems  to  me  to  have  been  the  state  of  facts,  and  the  rela 
tions  of  the  State  of  Illinois  to  the  United  States,  when  the  act  of 
March  3,  1857,  "An  Act  to  settle  certain  accounts  between  the 
United  States  and  the  State  of  Mississippi  and  other  States,"  was 
passed. 

The  State  of  Illinois  then  had  a,  just  claim  on  the  United  States, 
capable  of  liquidation  in  the  Land-Office,  founded  on  the  fact  that 
the  United  States  had  agreed,  for  an  adequate  and  valuable  consid 
eration,  to  appropriate  two  per  cent  of  the  receipts  from  the  sales 
of  public  lands  sold  within  the  State,  to  make  roads  leading  to  the 
State,  and  had  not  performed  this  contract. 

Now  concerning  the  Act  of  March  3,  1857,  there  are  certain 
things  undoubtedly  true. 

1st.  That  it  relates  to  the  state  of  the  account  between  the 
United  States  and  the  several  States,  arising  out  of  the  sales  of 
public  lands  within  such  several  States. 

2d.  That  it  assumes  that  this  account  arises  out  of  the  stipula 
tions  made  by  the  United  States  in  respect  to  the  reservation  of  five 
per  cent,  for  the  benefit  of  such  States,  from  the  proceeds  of  the 
sales  of  public  lands  within  such  States. 

3d.  That  it  commands  the  Commissioner  of  the  General  Land- 
Office  to  state  such  an  account. 

Thus  far  is  clear.     The  doubts  which  arise  are  :  — 

1st.  Whether  this  legislation  had  any  other  scope  or  effect 
than  this,  —  to  direct  the  Commissioner  to  include  Indian  and 
other  reservations. 

2d.  Whether  the  Commissioner,  in  stating  the  account  required 
by  this  law,  should  go  into  the  inquiry  how  far  the  United  States 
had  executed  its  trust  as  respected  the  two  per  cent  by  "making 
roads  leading  to  the  State,"  and  should  pass  on  that  general  ques 
tion,  and  in  some  way  arrive  at  its  results. 

Upon  the  first  of  these  questions,  I  find  myself  unable  to  enter 
tain  any  doubt. 

The  act  in  question,  by  its  first  section,  requires  an  account  to  be 


1870.]  OPINIONS   GIVEN   AT   THE   BAR.  427 

stated  between  the  State  of  Mississippi  and  the  United  States  for 
the  purpose  of  ascertaining  what  sum  or  sums  of  money  are  due  to 
said  State,  heretofore  unsettled,  on  account  of  the  public  lands  in 
said  State;  and  it  directs  and  requires  that  in  stating  that  account 
the  Commissioner  of  the  General  Land-Office,  who  is  commanded 
to  state  the  same,  shall  include  certain  described  items. 

I  am  wholly  unable  to  perceive  why  the  whole  of  this  mandate 
of  the  Legislature  should  not  be  obeyed.  And  if  the  whole  is  to 
be  obeyed,  there  must  be  :  — 

1st.  An  account  stated  of  the  sum  or  sums  of  money  due  to  the 
State. 

2d.  There  must  be  included  therein  the  items  designated. 

To  state  an  account  of  the  items  specially  required  to  be  included 
therein  would  not  approach  so  near  to  compliance  with  the  act,  as 
to  state  an  account  of  the  sums  of  money  due  to  the  State  without 
including  these  special  allowances.  The  latter  would  obey  the 
general  order  of  Congress,  and  disregard  one  of  its  details.  The 
former  would  disregard  the  general  order  to  state  an  account,  and 
substitute  in  its  place  obedience  to  a  special  direction  as  to  particu 
lar  items  to  be  included  therein. 

It  is  every  day's  practice  for  courts  to  order  an  account  to  be 
taken,  covering  a  particular  subject-matter,  and  direct  that  certain 
items  shall  be  included  in  the  account.  I  never  supposed  any  one 
could  believe  that  such  an  order  would  be  complied  with  by  taking 
an  account  of  the  items  specially  directed  to  be  included  in  the 
account. 

If  the  sole  object  of  Congress  had  been  to  allow  the  State  of 
Mississippi  and  each  of  the  other  States  two  per  cent  on  a  fixed 
valuation  of  one  dollar  and  a  quarter  on  the  lands  reserved  from 
sale,  why  was  not  this,  and  this  alone,  said  by  Congress  ?  Why 
should  an  account  have  been  directed  of  the  sum  or  sums  of  money 
due  to  the  State  on  account,  not  of  these  reservations,  but  "  of  the 
public  lands  in  the  said  State  "  ?  The  question  being  whether  the 
account  is  to  be  restricted  to  "  reservations,"  or  to  include  all  sales 
of  public  lands,  how  is  it  possible  to  escape  from  the  express  words 
of  the  act,  that  the  account  is  to  be  of  what  is  due  "  on  account  of 
the  public  lands  in  said  State,"  and  that  the  reservations  are  to  be 
"  included,"  as  one  of  its  items  ?  If  this  is  true  as  between  the 
State  of  Mississippi  and  the  United  States,  it  is  equally  true  as 
between  the  State  of  Illinois  and  the  United  States,  by  force  of  the 


428  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1870. 

second  section  of  the  act  of  March  3,  1857,  which  applies  "the 
same  principles  "  to  each  of  the  other  States. 

Upon  the  second  of  these  questions,  —  namely,  whether  the  Com 
missioner,  in  stating  the  account  required  by  this  law,  should  go  into 
the  inquiry  how  far  the  United  States  had  executed  its  trust  as 
respected  the  two  per  cent  by  ''making  roads  leading  to  the  State," 
and  should  pass  on  that  general  question,  and  in  some  way  arrive 
at  its  result,  —  I  am  of  opinion  that  the  act  in  question  neither 
required  nor  allowed  any  such  inquiry  by  the  Commissioner. 

1st.  The  act  gives  no  directions  to  make  such  inquiry,  or  to 
include  in  the  account  any  such  items. 

2d.  The  state  of  facts  then  existing  afforded  no  foundation  for 
any  such  inquiry,  or  any  materials  whereby  the  Commissioner  of 
the  General  Land-Office  could  state  any  account  including  such 
deductions.  There  were  no  accounts  in  his  office,  or  under  his 
official  knowledge,  which  would  enable  him  to  make  such  deduc 
tions  as  matters  of  account,  and  no  charges  had  been  made  any 
where  against  the  proposed  account. 

3d.  In  point  of  fact,  the  United  States,  instead  of  complying 
with  its  promise  to  expend  the  money  in  building  roads  "  to  the 
State,"  had  long  before  the  date  of  this  law  wholly  abandoned  the 
execution  of  the  trust,  and  had  made  such  disposition  of  the  prop 
erty  as  was  inconsistent  with  its  performance.  The  assumption 
that  this  act  of  Congress  requires  the  Commissioner  to  make 
allowances  to  the  United  States  for  expenditures  by  the  United 
States  in  building  roads,  is  an  assumption  that  Congress  meant  to 
require  allowances  under  a  contract  for  what  was  not  done  in  per 
formance  of  that  contract,  and  this  assumption  is  made  without  any 
expression  of  the  will  of  Congress  to  that  effect.  In  my  opinion 
it  is  unfounded. 

Congress  has  required  an  account  to  be  stated  respecting  a  par 
ticular  subject-matter.  It  gives  two  directions  as  to  the  mode  of 
stating  that  account :  — 

1st.  "  What  sum  or  sums  of  money  are  due  to  the  said  State, 
heretofore  unsettled,  on  account  of  the  public  lands  of  the  said 
State  ?  " 

2d.  The  other  is  a  direction  to  "  include  in  said  account"  certain 
reservations. 

To  suppose  that  "  heretofore  unsettled  "  remitted  the  State  to 
the  Commissioner  of  the  Genera,!  Land-Office,  to  inquire  how  much 


1870.]  OPINIONS    GIVEN   AT    THE   BAK.  429 

the  United  States,  under  its  old  and  abandoned  system  of  public 
improvements,  had  spent  in  "  making  roads  to  the  State,"  seems  to 
me  wholly  inadmissible. 

And  there  is  one  among  many  reasons  why  it  is  not  admissible, 
which  I  may  properly  state. 

The  act  of  March  2,  1855,  had  reference  to  the  State  of 
Alabama.  The  United  States  had  made  no  expenditures  of  this 
character  which  could  be  deducted  from  the  account  under  this 
act.  I  understand  none  were  deducted.  The  first  section  of  the 
act  of  March  3,  1857,  respects  the  State  of  Mississippi.  The 
United  States  had  made  no  expenditures  of  this  character  which 
could  be  deducted  from  the  account  under  this  act,  and  none  were 
deducted.  Now  the  second  section  of  this  act  of  March  3,  1857, 
which  is  now  in  question,  requires  the  Commissioner  to  state  an 
account  between  the  United  States  and  each  of  the  other  States 
"  upon  the  same  principles."  How  then  can  the  Commissioner  state 
the  account  upon  any  different  principles  ?  How  can  he  undertake 
to  say,  I  insist  the  United  States  owes  you  nothing,  not  because 
this  account  of  the  title  of  the  State  to  five  per  cent  of  the  sales  of 
the  public  lands  has  ever  been  settled,  but  because  I  find  by  inquiry, 
out  of  my  own  department,  that  the  United  States  undertook  to 
perform  the  trust  for  which  they  reserved  this  money,  and  before 
they  voluntarily  abandoned  its  performance,  and  made  what  they 
had  done  useless  to  the  State  of  Illinois,  they  had  spent  all  the 
money  reserved.  Who  authorized  the  Commissioner  to  enter  into 
this  inquiry  ?  In  my  judgment  his  jurisdiction  to  make  it  was  as 
unfounded  as  the  conclusion  at  which  he  arrived.  That  conclusion 
seems  to  have  been,  that,  because  the  United  States  spent  money  to 
make  roads  within  the  State  of  Illinois,  which  were  abandoned 
without  completion,  and  are  said  to  have  been  worthless,  their  cost 
should  be  allowed  as  coming  under  the  contract  to  expend  the  two 
per  cent  "  in  making  roads  leading  to  the  State.'"  I  am  unable  to 
agree  to  this  conclusion. 

In  my  opinion  the  act  of  March  3,  1857,  contains  a  direction, 
to  the  Commissioner  of  the  General  Land-Office  to  state  an  account 
in  which  he  is  to  credit  the  State  of  Illinois  with  five  per  cent 
of  the  sales  of  public  lands  made  within  that  State ;  and  is  to 
charge  that  State  with  the  moneys  which"  have  been  paid  by  the 
United  States  towards  a  settlement  of  that  account.  And  under 
that  act,  in  my  opinion,  he  has  no  authority  to  include  in  that 


430  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1870. 

account  any  other  item,  except  what  he  is  expressly  directed  to 
include,  namely,  the  reservations  at  their  fixed  valuation. 

B.  R.  CURTIS. 
BOSTOX,  Oct.  25,  1870. 

CHANGES  IN  THE   USE  OF  PUBLIC  PROPERTY,  WHICH 
AFFECT   PRIVATE   RIGHTS. 

OPINION. 

I  have  read  and  considered  the  bill  of  the  United  States  against 
the  Illinois  Central  Railroad  and  others,  and  the  answer  of  the 
defendants  thereto ;  I  have  also  examined  the  statutes  of  the  State 
of  Illinois  submitted  to  me,  and  I  have  considered  the  questions 
which  I  apprehend  are  raised  and  involved  by  the  said  bill  and  by 
the  subject-matter  on  which  it  is  founded.  And  my  opinion  is,  — 

1st.  That  if  the  Secretary  of  War  had  power  to  make  the  dedi 
cation  in  question  (and  I  strongly  incline  to  think  he  had,  as  an 
incident  to  the  power  of  sale  conferred  by  the  act  of  March  3, 1819), 
the  United  States  have  no  remaining  interest  which  can  enable  them 
to  maintain  this  bill. 

2d.  If  the  Secretary  had  authority  to  make  the  dedication, 
there  was .  an  effectual  dedication  of  the  land  in  question  for  the 
purposes  expressed  on  the  plat,  "  that  it  should  be  public  ground, 
for  ever  to  remain  vacant  of  buildings." 

3d.  Its  dedication  as  public  ground  vested  the  fee  of  the  land 
in  the  municipal  corporation,  subject  to  the  controlling  power  of  the 
State,  which  might  change  the  use  so  far  as  the  use  was  merely  public. 

4th.  This  dedication,  and  the  accompanying  sales  of  the  lots  im 
mediately  adjacent,  and  which  were  purchased  with  some  reference 
to  it,  conferred  private  rights  upon  the  owners  of  those  lots  to  have 
the  dedication  continued  ;  how  many  of  these  lots  thus  obtained  some 
right  arising  from  the  dedication,  it  is  not  necessary  now  to  consider. 

5th.  Though  owners  of  lands  take  their  titles  subject  to  such 
injurious  changes  as  the  Legislature  may  see  fit  to  make  in  adjacent 
lands  or  waters  belonging  to  the  public,  yet  this  subjection  of  private 
to  public  rights  cannot  be  extended  to  such  a  case  as  that  now  pre 
sented.  The  rule  is  to  have  a  fair  and  reasonable  application  to 
cases  where  it  was  obvious  to  the  private  owner  when  he  acquired 
his  title  that  changes  injurious  to  him  might  be  required  to  enable  the 
public  more  completely  or  effectually  to  enjoy  the  particular  public 


1870.]  OPINIONS    GIVEN   AT   THE   BAR.  431 

use  for  which  the  property  in  question  was  held  by  the  public ;  or, 
at  furthest,  some  similar  or  analogous  use  capable  of  being  there 
contemplated.  And  a  diversion  of  the  adjacent  public  property  to 
another  public  use,  wholly  different  from  that  to  which  it  was  specially 
and  specifically  dedicated,  though  made  by  the  authority  of  the 
Legislature,  cannot  be  considered  as  made  in  conformity  with  private 
right,  but  in  derogation  thereof. 

6th.  But  this  existence  of  private  rights  is  no  restraint  on  the 
power  of  the  Legislature  to  change  the  use  of  public  property.  It 
merely  secures  to  the  owners  of  those  private  rights  compensation 
for  their  destruction,  to  the  extent  of  the  actual  injury  they  may  suf 
fer  by  the  change.  And  if  the  injury  worked  by  the  change,  viewed 
as  a  whole,  is  nothing,  the  damages  recoverable  are  nothing. 

7th.  The  act  of  the  Legislature  of  Illinois  granting  to  the  three 
railroad  corporations  the  fee  of  the  land  in  question  for  the  erection 
of  a  passenger  depot  thereon,  and  other  business  purposes  of  those 
corporations,  has  effectually  changed  the  public  use,  without,  how 
ever,  depriving  the  private  persons,  having  &.  vested  interest  in  the 
former  use,  of  their  claim  to  compensation. 

8th.  This  new  appropriation  of  property  has  been  made  by  the 
State,  not  by  an  exercise  of  its  rights  of  eminent  domain  to  take 
private  property  for  public  use,  but  by  virtue  of  its  power  to  change 
the  uses  of  property  held  for  the  public.  But  when  such  a  change 
is  made  by  the  State,  if  any  vested  private  rights  are  taken  away 
by  mere  force  of  that  act  of  the  State,  it  is  required  that  some  reason 
able  provision  should  be  made  by  the  Legislature  for  compensation 
for  the  destruction  of  such  vested  private  rights. 

9th.  In  this  case  there  is  no  such  destruction  of  vested  private 
rights  by  force  of  the  act  of  the  Legislature :  it  only  conveys  the 
right  and  title  of  the  State.  If  there  are  vested  private  rights,  (and 
I  think  there  are,)  they  remain  unaffected  by  the  act  of  the  Legis 
lature  ;  and  so  there  was  no  necessity  for  the  Legislature  by  this 
act  to  make  provision  for  compensation. 

10th.  How  these  private  rights  can  be  condemned,  by  force  of 
the  existing  charters  of  either  of  the  three  roads,  "  for  the  erection 
of  a  passenger  depot,  and  for  such  other  purposes  as  the  business  of 
the  said  companies  may  require,"  must  depend  on  the  true  construc 
tion  of  their  charters,  and  the  general  laws  on  which  they  are 
engrafted.  As  they  stand,  the  condemnation  must  be  of  the  land. 
This  would  necessarily  carry  with  it  all  opposing  rights  and  inter- 


432  MEMOIR    OF    BENJAMIN    BOBBINS    CURTIS.  [1871. 

ests.  The  question  is,  whether  either  of  the  corporations  has 
power  to  condemn  land  for  these  purposes  of  depot  accommodations, 
&c.  I  have  examined  the  charters  and  the  general  laws,  and  see  no 
reason  to  doubt  the  existence  of  the  power.  But  it  is  so  peculiarly 
a  question  of  local  law  that  I  think  the  opinion  of  gentlemen  of  the 
bar  of  the  State  far  more  important  than  my  own. 

llth.  My  advice  would  be  to  proceed  to  condemnation.  If  the 
owners  of  these  rights  appear  and  claim  damages,  their  rights  will 
be  thereby  extinguished.  If  they  do  not  appear,  the  condemnation 
can  be  set  up  by  a  supplemental  cross-bill  as  a  bar. 

12th.  The  suit  by  the  United  States  seems  to  me  founded  on  no 
title  whatever. 

The  suit  by  one  or  more  of  the  owners  of  lots  I  think  may  be 
maintained  as  an  assertion  of  their  private  rights  until  they  shall  be 
extinguished  by  a  condemnation.  When  that  condemnation  shall  be 
had  in  due  course  of  law,  I  think  their  title  will  be  extinguished. 

B.  R.  CURTIS. 
BOSTON,  Nov.  5,  1870. 

MINNESOTA   STATE  BONDS.  — QUESTION  OF   LIEN  UPON  THE 
PROPERTY  MORTGAGED  TO  THE  STATE  TO  SECURE  THEM. 

OPINION. 

I  have  examined  the  case  stated  by  Messrs.  M.  and  B.  for  an 
opinion  of  counsel  respecting  the  rights  of  holders  of  bonds  of  the 
State  of  Minnesota  upon  property  conveyed  by  the  several  railroad 
corporations  therein  mentioned  to  the  State  of  Minnesota,  as  security 
for  the  payment  of  the  said  bonds.  I  will  now  state  my  answers  to 
each  of  the  questions  proposed,  and  indicate  the  grounds  and  reasons 
upon  which  they  seem  to  me  to  be  correct. 

The  Jirst  question  is :  Would  the  State,  having  granted  away 
the  property  free  of  all  claim,  be  a  necessary  party,  if  suable  ? 

In  my  opinion,  the  State,  if  suable,  would  be  a  necessary  party. 
The  foundation  of  the  suit  is  alleged  claims  against  the  State,  and 
an  equitable  right  to  have  certain  property  in  the  hands  of  the 
present  corporations  affected  by  a  trust,  and  appropriated  to  pay 
those  claims.  In  my  judgment,  a  court  of  equity  would  in  ordinary 
cases  require  the  debtor  to  be  made  a  party,  that  a  just  and  final 
account  might  be  taken  of  the  amount  of  the  debt,  and  thus  the 
whole  matter  be  finally  concluded  as  between  all  the  parties. 


1871.1  OPINIONS    GIVEN   AT   THE   BAR.  433 

But  in  this  case  the  State  cannot  be  made  a  party,  and  is  under 
no  responsibility,  directly  or  indirectly,  to  the  present  railroad 
corporations,  and  has  no  interest  whatever  which  can  be  affected 
by  a  decree. 

The  question  is  in  substance  this  :  If  a  State  holds  property 
affected  by  a  trust,  and  conveys  it  to  a  third  person  with  notice  of 
the  trust,  is  the  cestui  que  trust  without  remedy  against  the  third 
person,  whom  be  can  sue,  because  that  person  holds  under  the  State, 
which  he  cannot  sue  ?  I  do  not  think  a  court  of  equity  would  take 
that  view  ;  and  the  reasoning  of  the  Supreme  Court  of  the  United 
States  in  Osborn  v.  Bank  of  United  States,  9  Wheaton,  738,  respect 
ing  the  relation  of  a  State  to  a  suit  against  one  claiming  under  its 
authority,  confirms  my  opinion. 

The  second  question  is :  Do  the  public  acts,  mortgage  deed,  and 
foreclosure  proceedings,  and  their  recitals,  affect  all  parties  who 
have  dealt  with  the  State,  its  grantees  and  assigns,  in  respect  to 
this  property,  with  sufficient  notice  of  the  beneficial  interests  of  the 
bond-holders,  so  as  to  charge  the  property  therewith  in  the  hands  of 
the  new  organizations  ? 

I  answer  the  question  in  the  affirmative.  The  public  laws  of 
the  State,  and  the  trust  and  mortgage  deeds  and  their  foreclosures, 
form  the  title  of  the  grantors,  of  which  the  grantees  of  the  State 
are  presumed  to  have  had  notice.  It  was  only  under  and  by  virtue 
of  these  laws,  which  clearly  show  the  title  of  the  State  and  the 
trusts  attaching  to  that  title,  that  any  conveyance  could  be  made 
by  the  State. 

The  third  question  is :  Will  equity  compel  the  application  of  the 
property  or  its  proceeds,  or  any  and  what  part  of  it,  mortgaged  to 
secure  the  State  liability,  to  the  payment  of  the  State  bonds  ? 
i.  e.  make  each  new  organization  account  for  the  property  it  re 
ceived  to  the  extent  of  the  State  bonds  issued  to  its  route,  convert 
ing  them  severally  by  construction  into  trustees  to  this  end? 

When  one  for  whose  accommodation  negotiable  paper  is  issued 
by  a  third  person,  conveys  property  either  to  such  third  person  to 
indemnify  him,  or  conveys  it  to  a  trustee  for  that  end,  equity  treats 
the  property  as  set  apart  for  the  payment  of  the  debt;  and  any 
party  interested  in  its  payment  may  have  the  aid  of  a  court  of  equity 
to  compel  the  application  of  the  property  to  make  such  payment. 
And  the  obligation  so  to  apply  it  attaches  upon  the  property,  and 
follows  it  into  the  hands  of  any  third  person  who  takes  it  with 
VOL.  i.  28 


434  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1871. 

notice  of  the  obligation.  The  leading  case  on  this  subject  is 
Maure  v.  Harrison,  1  Eq.  Ab.  93,  K.  5,  and  it  has  been  followed 
by  many  others.  In  Moses  v.  Muryetroyd,  1  Johns.  Ch.  R.  119,  129, 
Chancellor  Kent  said :  "  I  shall,  then,  consider  this  fact  as  well 
made  out;  viz.  that  the  assignment  of  the  12th  of  February,  1806, 
though  absolute  on  the  face  of  it,  was  intended  by  the  parties  to  it 
to  be  a  security  only  to  the  intestate  for  his  indorsement  of  the 
notes  in  question.  This  being  the  case,  the  plaintiffs,  as  holders  of 
the  notes,  are  entitled  to  the  benefit  of  this  collateral  security  given 
by  their  principal  debtor  to  his  surety ;  and  the  case  of  Maure 
v.  Harrison  is  directly  to  this  point.  These  collateral  securities 
are,  in  fact,  trusts  created  for  the  better  protection  of  the  debt ; 
and  it  is  the  duty  of  this  court  to  see  that  they  fulfil  the  design. 
And  whether  the  plaintiffs  were  apprised,  at  the  time,  of  the  creation 
of  this  security,  is  not  material.  The  trust  was  created  for  their 
benefit,  or  for  the  better  security  of  their  debt ;  and  when  it  came 
to  their  knowledge,  they  were  entitled  to  affirm  the  trust,  and 
to  enforce  its  performance."  See  also  Phillips  v.  Thompson, 
2  Johns.  Ch.  418  ;  Clark  v.  Ely,  2  Sand.  Ch.  1GG;  Wright  v.  Morley, 
11  Ves.  22. 

The  only  difficulty  I  have  found  in  answering  the  question  has 
been  in  ascertaining  what  property  can  be  considered  as  having 
been  effectually  set  apart  for  the  payment  of  these  bonds.  After 
careful  consideration,  I  am  of  opinion  that  the  following-named 
property  was  so  set  apart :  — 

The  railroad  corporations  were,  by  what  is  called  in  the  case  the 
loan  amendment,  required  to  provide  for  the  payment  of  the  prin 
cipal  and  interest  of  the  State  bonds  delivered  to  them  for  their 
accommodation,  and,  to  this  end,  they  were  required  to  convey  to 
the  State  their  title  to  the  first  two  hundred  and  forty  sections 
of  land,  which  were  to  be  disposed  of  in  such  manner  as  to  have 
application  made  of  their  proceeds  to  pay  the  interest  and  sink  the 
principal  of  the  State  bonds.  I  understand  from  the  "  Case,"  that 
this  was  done.  If  so,  it  is  clear  that,  whatever  title  the  railroad 
corporations  had  to  these  lands  (two  hundred  and  forty  sections), 
or  any  part  of  them,  was  thereby  effectually  set  apart  and  appro 
priated  for  the  payment  of  the  principal  and  interest  of  the  State 
bonds  ;  and  each  taker  of  a  State  bond  acquired  an  equitable  right 
to  have  the  same  so  applied.  I  do  not  think  the  facts  that  each 
railroad  corporation  also,  as  part  of  the  same  transaction,  delivered 


1871.]  OPINIONS    GIVEN   AT   THE   BAR.  435 

to  the  State  its  own  bonds,  and  secured  them  by  mortgage  of  the 
same  and  other  property,  and  that  the  State  foreclosed  these  mort 
gages  for  non-payment  of  the  bonds  of  the  mortgagors,  in  any 
degree  varies  the  rights  of  the  parties ;  because  these  bonds  of  the 
railroad  corporations,  and  the  mortgages  to  secure  them,  were  given 
to  indemnify  the  State,  and  if  the  trust-deeds  had  not  been 
executed,  all  title  acquired  by  the  State  under  foreclosure  must 
necessarily  be  affected  by  the  same  trust,  and  bound  by  the  same 
obligation  to  holders  of  bonds  of  the  State  to  appropriate  the  prop 
erty  acquired  by  the  foreclosure  to  the  payment  of  the  principal 
and  interest  of  the  bonds  of  the  State,  to  secure  the  payment  of 
which  the  bonds,  by  force  of  which  the  foreclosure  took  place,  were 
given  to  the  State. 

The  entire  security,  in  the  different  forms  in  which  it  was  given, 
was  designed  and  appropriated  to  the  payment  of  the  principal  and 
interest  of  the  bonds  of  the  State ;  arid  it  was  not  in  the  power  of 
the  State,  by  any  contrivances,  to  take  away  from  the  holders  of 
its  bonds  the  benefit  of  securities  which  the  State  itself  held  for 
the  payment  of  its  bonds,  so  as  to  prevent  a  court  of  equity  from 
following  out  the  trusts  which  actually  existed,  if  such  a  court  could 
obtain  jurisdiction  over  the  subject-matter.  And  when  any  third 
person,  who  could  be  sued  in  a  court  of  equity,  obtained  title  to  the 
property  thus  charged  with  a  trust,  with  notice  of  the  trust,  I  see 
no  reason  to  doubt  that  the  trust  could  be,  and  ought  to  be,  enforced. 
Looking  more  particularly  at  the  several  mortgage  transactions, 
they  appear  to  have  differed  in  some  details.  The  mortgage  to  the 
State  of  two  hundred  and  forty  sections  of  land  was  required  by 
"  the  loan  amendment "  to  be  made  by  absolute  conveyances  to  the 
State  of  those  lands,  upon  the  trusts  declared  in  that  amendment. 
These  conveyances  are  stated  to  have  been  made.  And  in  my 
opinion  these  lands,  so  far  as  the  companies  had  title,  were  held 
by  the  State  upon  the  trusts  thus  declared,  which  set  apart  this 
property  for  the  payment  of  the  bonds,  and  the  mortgages  have  no 
reference  to  these  particular  lands.  What  is  hereafter  said  about 
the  foreclosure  of  these  mortgages  must  be  understood  as  not 
referring  to  the  title  to  these  lands,  which  was  fixed  by  the  loan 
amendment  and  the  laws  enacted  to  carry  it  into  effect. 

As  to  the  mortgages,  the  Minneapolis  and  Cedar  Valley  Railroad 
Company  issued  no  mortgage  bonds  beyond  those  delivered  to  the 
State.  The  other  three  railroad  corporations  issued  mortgage 


436  MEMOIR    OF   BENJAMIN   BOBBINS   CURTIS.  [1871. 

bonds  to  other  persons.  In  some  cases  the  foreclosure  was  made 
by  the  Governor,  acting  as  attorney,  in  fact,  of  the  mortgagees  ;  in 
others,  the  trustees  acted.  In  my  opinion,  it  is  not  material  by 
what  lawful  agency  the  foreclosure  was  made.  The  title  held  by 
the  State  was  held  to  secure  the  payment  of  the  principal  and 
interest  of  the  State  bonds-.  Each  holder  of  those  bonds  had  a 
vested  interest  in  that  application  and  use  of  the  title,  and  a  clear 
equitable  right  to  have  it  so  applied ;  and  the  particular  forms  the 
State  went  through  to  perfect  the  title,  and  make  it  available  to  the 
end  for  which  it  was  created,  could  not  change  or  defeat  the  essen 
tial  purpose  for  which  it  was  created,  or  deprive  those  who  had  a 
fixed  equitable  interest  in  it  of  their  respective  rights. 

If  the  State  held  its  mortgage  title  affected  by  a  trust  in  favor 
of  the  holders  of  the  bonds  which  that  mortgage  title  was  given  to 
secure,  it  would  be  monstrous  to  hold  that  the  State,  by  a  fore 
closure  of  that  mortgage  title,  could  put  an  end  to  the  trust.  What 
ever  the  State  did  to  perfect  that  mortgage  title,  by  extinguishing 
the  equity  of  redemption,  must  be  deemed  to  have  been  done  in  its 
capacity  of  a  trustee ;  and  it  would  be  contrary  to  the  plainest 
principles  of  equity  to  allow  the  trustee  to  set  up  that  title,  acquired 
by  foreclosure,  as  overriding  the  trust.  It  is  true,  that  if  a  third 
person,  wholly  unaffected  by  any  trust,  or  by  any  previous  connec 
tion  with  the  title,  had  purchased  at  the  foreclosure  sale,  he  might 
have  held  the.  property  free  from  any  trust.  But  the  State,  as  has 
been  seen,  stood  in  a  fiduciary  relation  to  the  property  and  to  the 
holders  of  the  State  bonds,  and  could  not  divest  itself  of  that 
fiduciary  character  by  turning  a  mortgage  title  into  an  absolute 
title.  But  it  was  conveyed  to  other  trustees  to  secure  bonds  held 
by  the  State  as  part  of  its  security  for  the  payment  of  its  own 
bonds  by  the  companies ;  and  when  the  State  acquired  the  legal 
title  by  the  foreclosures,  in  my  opinion  it  held  it  upon  the  same 
trusts  as  it  had  previously  held  the  bonds  of  the  companies. 

The  fourth  question  is :  Will  the  claims  of  parties  who  have 
advanced  to  the  new  organizations  secured  by  mortgage  liens  on 
the  property  be  postponed  to  the  equitable  lien  of  the  State  bond 
holders  ?  The  answer  must  depend  upon  whether  such  parties  had 
actual  or  constructive  notice  of  the  trust ;  and  as  all  the  material 
facts  on  which  the  title  of  the  State  bond-holders  depends  are  upon 
the  face  of  the  laws  of  the  State,  and  the  title  deeds  to  and  from 
the  State  under  which  the  new  organizations  claim,  I  am  of  opinion 


1871.]  OPINIONS   GIVEN   AT  THE  BAR.  437 

that  notice  is  to  be  imputed  to  parties  who  have  taken  mortgages 
of  the  property  from  the  present  organizations. 

The  fifth  question,  as  I  understand  it,  has  been  already  answered. 
The  lands  conveyed  by  the  railroad  companies  to  the  State  have 
passed  from  the  State  to  the  present  organizations,  but  affected  by 
a  trust  in  favor  of  the  holders  of  bonds  of  the  State. 

The  sixth  question  is :  Were  these  contracts  between  the  State 
and  the  bond-holders  iu  respect  to  these  two  hundred  and  forty 
sections,  and  between  the  trustees  in  the  trust  deeds  and  the  bond 
holders  in  respect  to  the  rest  of  the  Congressional  grant,  or  any 
part  of  it,  impaired  by  the  Minnesota  Legislature,  in  violation  of 
the  Constitution  of  the  United  States  ? 

As  respects  the  two  hundred  and  forty  sections,  I  answer  in  the 
affirmative,  —  as  to  the  residue,  in  the  negative. 

Though  there  is  no  separate  question  proposed  concerning  the 
effect  of  lapse  of  time,  that  inquiry  is  implied  in  the  third  question. 

It  has  already  appeared  that,  in  my  opinion,  a  trust  was  created 
in  favor  of  the  holders  of  bonds  of  the  State,  and  I  think  this  was 
an  express,  in  contradistinction  to  a  constructive  trust.  If  the 
deeds  to  the  State  had  in  words  declared  the  interest  of  the  bond 
holders  in  the  property,  their  legal  effect  would  have  been  pre 
cisely  the  same  as  without  such  an  express  declaration.  And  so, 
if  the  amendment  of  the  Constitution  and  the  laws  which  provided 
for  the  security  of  the  bonds  of  the  State  had,  in  terms,  declared 
that,  in  case  of  default  of  the  State  and  the  corporation  to  pay  the 
interest  or  principal  of  the  State  bonds,  their  holders  would  have 
a  right  to  have  the  security  deposited  with  the  State  by  the  corpo 
rations  applied  to  pay  the  State  bonds,  this  express  declaration 
would  have  amounted  to  no  more  than  the  necessary  legal  effect 
of  the  transaction  without  such  declaration.  Of  course,  if  an  ex 
press  trust  arose  out  of  these  transactions,  that  trust  has  not  been 
affected  by  lapse  of  time. 

If  it  should  be  held  to  be  only  a  constructive  trust,  there  is  no 
rule  in  equity  which  fixes  any  precise  time  as  a  bar.  It  must 
depend  on  the  circumstances  of  the  case.  Michoud  v.  Girod, 
4  Howard,  503. 

Assuming  that  these  trusts  were  in  effect  denied  by  the  State, 
by  the  acts  of  March,  1862,  I  do  not  think  a  court  of  equity  would 
treat  the  lapse  of  time  as  a  bar.  Considering  that  the  bonds  of  the 
State  have  been  held  by  a  numerous  class  of  persons,  no  one  of 


438  MEMOIR   OF   BENJAMIN   EOBBINS   CURTIS.  [1874. 

whom  could  reasonably  be  expected  to  act  alone,  and  that  it  was 
not  legal  laches  to  hope  that  a  returning  sense  of  justice  would 
relieve  the  State  from  repudiation  by  payment  of  the  bonds,  I 
think  it  would  be  harsh  and  inequitable  to  hold  lapse  of  time  to 
be  an  effectual  bar. 

B.  R.  CURTIS. 
December,  1871. 

OPINION  ON  THE   CITIZENSHIP  OF  C.   W.   A. 

Temporary  allegiance  to  a  foreign  country  is  not  a  renuncia 
tion  of  native  citizenship. 

CASE. 

In  the  latter  part  of  the  year  1861,  C.  W.  A.,  who  was  a  native 
born  citizen  of  the  United  States,  and  owner  of  several  vessels 
then  being  in  English  ports,  became  apprehensive  of  war  between 
the  United  States  and  Great  Britain. 

He  and  his  family  were  then  in  England.  He  went  to  the  city 
of  Hamburg  for  the  purpose  of  placing  his  vessels  under  the  Hani- 
burg  flag,  and  in  order  to  do  so,  he  took  before  the  proper  office  of 
the  city,  the  following  oath:  — 

EXTRACT  FROM  THE  JOURNAL  OF  THE  LICENSE  OFFICE. 

According  to  the  journal  kept  at  the  License  Office,  No.  57,  it  appears 
that  C.  W.  A.,  on  the  17th  of  January,  1862,  has  taken  the  oath,  of  which 
a  copy  is  affixed  below,  and  by  so  doing  has  acquired  the  position  and  the 
privileges  of  upper-citizenship  of  the  city  of  Hamburg. 

Hamburg,  Jan.  17,  1862.  Att.  Claussen  Dr.,  1st  Officer  License  Office, 
Citizen's  Oath.  I  vow  and  swear  to  God,  the  Almighty,  that  I  will  be  true 
and  faithful  to  the  Free  and  Hanseatic  Town  of  Hamburg  and  to  the  Sen 
ate,  that  I  will  strive  for  the  best  of  the  city,  and  try  and  protect  it  from 
injury  as  much  as  may  be  in  my  power,  that  I  will  conscientiously  observe 
the  constitution  and  the  laws,  that  I  will  honestly  and  without  cavil  pay 
all  duties  and  taxes  as  now  ordained,  or  as  they  may  hereafter  be  agreed 
upon  between  the  senate  and  the  common  council,  and  that  I  will  never  seek 
my  advantage  to  the  disadvantage  of  the  city.  So  help  me  God. 

(Signature  of  the  holder,)  C.  W.  A- 

He  had  no  intention  of  remaining  permanently  in  the  city  of 
Hamburg,  or  of  making  that  the  home  of  himself  and  family,  none 
of  whom  went  there,  and  he  himself  was  only  in  the  city  about 
three  weeks. 

The  question  is,  whether  Mr.  A.  ceased  to  be  an  American  citizen 
by  reason  of  the  facts  above  stated. 


1874.]  OPINIONS  GIVEN  AT  THE  BAR.  439 

OPINION. 

I  am  of  opinion  he  did  not. 

1st.  So  far  as  I  know,  it  is  universally  agreed  by  all  courts  and 
writers  on  the  subject  of  change  of  allegiance,  that  it  cannot  be 
effected  without  an  actual  change  of  domicile,  which  certainly  did 
not  take  place  in  this  instance. 

So  the  Supreme  Court  held  in  Blight's  Lessee  v.  Rochester, 
7  Wheaton,  535. 

In  the  several  opinions  given  by  the  heads  of  Departments  to 
the  President  of  the  United  States,  in  response  to  his  letter  of 
August  6,  1873,  this  requirement  of  a  change  of  domicile  is  fully 
admitted.  And  it  is  upon  this  principle  that  the  treaties  between 
the  United  States  and  foreign  countries  concerning  naturalization 
have  uniformly  required,  in  addition  to  the  act  of  naturalization,  a 
defined  period  of  continued  residence  in  the  adopted  country,  of 
sufficient  duration,  when  accompanied  by  the  act  of  naturalization, 
to  show  an  intention  permanently  to  remain  there. 

2d.  The  act  done  by  Mr.  A.,  in  taking  the  oath  in  the  form 
above  mentioned,  does  not  amount  to  a  renunciation  of  his  native 
allegiance,  or  to  a  declaration  of  a  determination  permanently  to 
remain  in  Hamburg.  It  is  consistent  with  its  just  meaning  to  hold 
that  his  purpose  was  to  require  such  commercial  privileges  as  the 
laws  of  Hamburg  bestowed  on  those  who,  while  resident  there,  would 
engage  to  be  true  and  faithful  to  the  city  and  its  government. 

I  do  not  profess  to  know  with  certainty  what  the  laws  of  Ham 
burg  were  in  this  particular,  but  on  page  121  of  the  volume  pub 
lished  by  executive  authority  in  1873  containing  papers  relating  to 
change  of  allegiance,  I  find  the  following  statement :  —  "  Hamburg. 
.  .  .  Aliens  can  become  naturalized  after  six  months  residence  on 
payment  of  a  small  fee.  The  law  of  Hamburg  is  said  to  recognize 
a  double  allegiance  in  persons  thus  naturalized,  and  does  not 
require  any  renunciation  of  native  allegiance."  This  statement  is 
taken  from  the  report  of  the  British  Commissioners,  whose  high 
character  leaves  no  doubt  in  my  mind  of  its  correctness.  And  it 
is  to  be  observed,  that  the  form  of  the  oath  taken  by  Mr.  A.  is 
entirely  consistent  with  this  statement. 

There  is  another  ground  upon  which  I  rest  my  opinion.  In 
May,  18G8,  a  treaty  was  concluded  between  the  United  States  and 
the  King  of  Prussia,  in  the  name  of  the  North  German  Confedera- 


440  MEMOIR   OF   BENJAMIN   BOBBINS    CUKTIS.  [1870, 

tion,  which  embraced  the  city  of  Hamburg.  Although  this  treaty 
does  not  expressly  relate  to  the  past,  nor  in  terms  to  the  future, 
my  opinion  is  that  the  governments  of  the  two  countries  must 
consider  and  treat  it  as  applicable  to  then  existing  cases,  as  well  as 
to  those  which  might  be  wholly  created  in  the  future.  In  other 
words,  that  the  terms  of  this  treaty  furnish  the  rules  for  the 
decision  of  every  case  which  might  come  in  question  after  it  was 
concluded  and  ratified.  If  this  be  so,  it  is  quite  certain  that 
Mr.  A.  does  not  come  within  its  requirements,  and  is  not  a  citizen 
or  subject  of  any  North  German  State. 

I  cannot  doubt  that,  if  the  Emperor  of  Germany  were  applied  to 
to  protect  the  rights  of  Mr.  A.  from  aggression  by  the  authorities  of 
the  United  States,  his  answer  would  be,  and  must  be,  "Mr.  A.  is  a 
citizen  of  the  United  States,  and  not  of  North  Germany." 

B.  R.  CUKTIS. 

April  13,  1874. 

In  January,  1870,  we  lost  the  dear  kinsman  who  was  so 
eminent  in  the  world  of  letters,  and  of  whom  my  brother 
said  that  nothing  could  measure  what  lie  owed  to  him.1 
I  do  not,  however,  reckon  tbe  death  of  Mr.  Ticknor  among 
the  deeply  afflicting  sorrows  of  my  brother's  last  years. 
True,  the  withdrawal  of  that  remarkable  intellect  left  a 
great  void  in  the  lives  of  all  who  had  lived  in  close  com 
munion  with  it ;  and  the  cessation  of  his  daily  manifesta 
tions  of  affection  and  interest  was  the  cessation  of  that 
which  seemed  for  a  time,  to  all  who  dwelt  within  their 
influence,  a  necessity  of  existence.  But  Mr.  Ticknor  died 
in  a  ripe  old  age,  in  what  we  feel  to  be  the  natural  order 
of  Providence ;  and  after  he  had,  with  characteristic  punc 
tuality  and  method,  arranged  every  thing  in  reference  to 
the  close  of  life.  Calmly,  minutely,  and  wisely,  with  a 
business-like  regularity,  he  made  himself  and  all  bis  affairs 
ready  for  the  summons;  and  then  cheerfully  awaited  it, 
happy  and  making  others  happy,  and  grateful  for  tbe 
extraordinary  felicity  that  had  been  his  lot.  There  was 

i  Life  of  Mr.  Ticknor,  Vol.  II.  p.  402,  note. 


1871.]  A   SHORT   VISIT   TO   EUROPE.  441 

not,  therefore,  in  his  death,  cause  for  a  more  poignant 
feeling,  than  the  tender  regret  with  which  we  part  from 
those  who  are  appointed  to  leave  us  after  life's  duties  have 
been  all  discharged  and  its  blessings  all  enjoyed. 

But  in  the  spring  of  1871  the  deaths  of  two  young 
children  brought  to  my  brother  an  affliction  of  another 
character.  As  a  needed  relief  from  its  exhausting  and 
depressing  influences,  both  parents  were  advised  to  go 
abroad.  My  brother  had  never  been  in  Europe  before  ; 
but  of  course  the  circumstances  under  which  he  made  this 
brief  tour  of  four  months  precluded  his  acceptance  of  social 
engagements.  The  following  letter  to  me  is  all  the  record 
of  his  visit  to  London  that  I  have. 

To  GEORGE  T.  CURTIS. 

LONDON,  June  25,  1871. 

DEAR  BROTHER,  —  We  have  now  been  a  month  in  England, 
and  half  that  time  in  London.  We  have  seen  and  enjoyed  much, 
and  both  Mallie  and  I  are  better  than  when  we  left  home.  We 
have  received  much  kind  attention  from  those  whose  attentions  are 
gratifying,  and  I  have  regretted  that  Mallie  could  not  more  enjoy 
it.  Mr.  Denison,1  to  whom  Mr.  Adams  gave  me  a  letter,  has  been 
extremely  kind  and  useful  to  me.  Through  him  I  have  seen  and 
heard  all  of  the  House  of  Commons  I  desired,  and  many  other 
things  besides.  The  Attorney-General,2  and  Sir  Roundell  and 
Lady  Palmer,3  have  also  been  very  kind,  as  have  many  others. 

We  shall  leave  London  the  last  of  this  week  for  Oxford,  &c., 
&c.,  and,  after  seeing  the  Lakes  and  Scotland,  return  here,  and  go 
to  the  Continent  about  the  1st  of  August.  We  have  taken  passage 
home  for  October  21st,  per  Russia. 

Neither  the  courts  nor  the  Houses  of  Parliament  have  produced 
just  the  impressions  I  expected.  But  both  are  eminently  practical, 

1  The  Rt.  Hon.  John  Evelyn  Denison,  at  that  time  Speaker  of  the  House 
of  Commons.     After  his  retirement  from  that  office,  lie  received  a  peerage, 
with  the  title  of  Lord  Ossington.     He  was  a  descendant  of  the  distinguished 
John  Evelyn,  of  the  reign  of  Charles  II.     He  died  March  8,  1873. 

2  Sir  Robert  Pollett  Collier. 

3  Sir  Roundell  Palmer  afterwards  became  Lord  Chancellor,  with  the  title 
of  Lord  Selborne. 


442  MEMOIR   OF  BENJAMIN  BOBBINS   CUIITIS.  [1871. 

and  manliness  and  good  temper  are  pleasant  things  to  see,  even  if 
somewhat  mixed  with  dulness.  I  have  sat  part  of  a  night  to  hear 
a  debate  on  the  ballot,  and  Mr.  Denison  was  here  this  afternoon  to 
say  that  the  debate  would  go  on  to-morrow  night,  and  some  of  the 
best  speakers  would  address  the  House ;  so  I  shall  go  again  to 
morrow.  I  have  seen  the  Tichborne  trial,  the  House  of  Lords  as 
a  Court  and  as  a  House,  all  the  Courts  of  Common  Law,  and  on 
Tuesday  am  to  go  to  the  Courts  of  Chancery.  As  to  the  *'  sights," 
we  have  done  many,  though  many  remain. 

Mr.  Denison  said  he  had  received  your  Life  of  Mr.  "Webster, 
and  if  the  proper  acknowledgment  had  not  been  made  he  was  very 
sorry,  and  he  directed  his  secretary  to  take  a  note  of  it.1 

Mai  lie  and  I  send  love  to  Louise,  and  I  am,  as  ever, 

Yours  affectionately, 

B.  R.  CURTIS. 

This  letter  really  gives  no  adequate  idea  of  the  attentions 
which  lie  received  in  London  from  persons  of  the  highest 
distinction.  But  their  invitations  were  necessarily  declined, 
and  lie  could  only  see  them  at  his  lodgings,  or  when  he  met 
them  in  such  public  places  as  he  visited.  But  I  am  told 
that  the  concourse  of  his  visitors  fully  marked  the  estima 
tion  in  which  he  was  held  in  England.  On  the  Continent, 
he  and  bis  wife  travelled,  in  a  very  private  manner,  through 
Holland,  Germany,  Austria,  Switzerland,  and  France.  He 
found  bis  greatest  pleasure  in  the  churches  and  galleries, 
which  afforded  him  opportunities  of  studying  works  of  art 
that  he  had  never  before  enjoyed.  The  journey  was  of 
some  benefit  to  his  health,  and  he  brought  borne  a  rich 
fund  of  recollections.  But,  loving  his  own  fireside  better 
than  all  other  places  or  scenes  in  the  world,  be  cared  less 
than  most  persons  do  for  the  changes  and  varied  interests 
of  travel. 

1  Mr.  Denison  was  an  intimate  friend  and  correspondent  of  Mr.  Webster 
for  more  than  thirty  years.  Judge  Curtis,  after  his  return,  mentioned  a 
very  gratifying  and  distinguished  attention  shown  to  him  by  Mr.  Deni 
son,  who  took  him  by  the  arm,  led  him  across  the  floor  of  the  House  of 
Commons,  and  placed  him  in  a  special  seat  on  the  right  of  the  Speaker's 
chair. 


1873.]  LECTURES   AT   THE   LAW   SCHOOL.  443 

On  landing  at  New  York,  in  the  latter  part  of  October, 
1871,  he  was  met  by  the  intelligence  that  he  had  been 
selected  as  one  of  the  counsel  for  the  government  of  the 
United  States,  to  prosecute  its  claims  before  the  Board 
of  Arbitration  that  was  soon  to  sit  at  Geneva,  under  the 
Treaty  of  Washington.  His  private  affairs,  and  his  en 
gagements  already  made,  might  perhaps  have  been  ar 
ranged  so  as  to  admit  of  his  accepting  this  appointment. 
But  he  scarcely  felt  equal,  in  strength  and  spirits,  to  the 
encounter  of  another  voyage  across  the  Atlantic,  immedi 
ately  after  his  return  home,  without  some  urgent  call  of 
duty.  In  truth,  it  was  his  constant  habit  to  regard  all 
such  things  in  the  light  of  duty.  He  did  not  covet  dis 
tinctions,  or  need  them ;  and,  not  feeling  that  his  services 
on  this  occasion  were  necessary  to  the  country,  its  conspic 
uous  character  did  not  tempt  him.  If,  however,  news  of 
the  appointment  had  reached  him  before  he  left  Europe,  he 
would  doubtless  have  remained,  and  taken  part  in  the  pro 
ceedings  at  Geneva. 

In  the  autumn  of  1872  and  the  spring  of  1873,  at  the 
request  of  the  Corporation  of  the  University  at  Cambridge, 
Judge  Curtis  delivered  a  course  of  lectures  at  the  Law 
School,  on  the  Jurisdiction  and  Practice  of  the  Federal 
Courts.1  No  compensation  was  proposed  or  stipulated  for 
this  service.  At  a  subsequent  time,  a  pecuniary  compen 
sation  was  offered.  Its  disposal  will  be  seen  from  the 
following  note  :  — 

To  PRESIDENT  ELIOT. 

WASHINGTON,  October  11,  1873. 

MY  DEAR  SIR,  —  Your  letter  of  the  llth  instant,  enclosing  check 
for  $500,  voted  by  the  Corporation  by  reason  of  my  lectures  at  the 
Law  School,  was  forwarded  to  me  here.  It  was  not  my  intention 

1  The  lectures  were  wholly  oral ;  but  Judge  Curtis's  son,  the  late  Mr. 
Walter  Curtis,  caused  them  to  be  phonographically  reported,  and  the  manu 
script  reports  are  extant.  It  is  to  be  hoped  that  they  may  at  some  time  be 
published,  with  the  necessary  annotations. 


444  MEMOIR   OF  BENJAMIN"  BOBBINS   CURTIS.  [1873. 

to  accept  any  pecuniary  compensation  for  that  service.  I  did  not 
say  so,  because  I  wished  not  to  make  that  difference  between  my 
self  and  other  lecturers,  to  whom  this  compensation  was  important. 
I  therefore  receive  [the  check]  and  return  for  the  Treasurer  the 
necessary  formal  receipt;  but  I  enclose  the  check  indorsed  to 
your  order,  requesting  you  to  take  the  needful  measures  to  have 
the  amount  expended  in  the  purchase  of  books  for  the  library 
of  the  Law  School,  relating  to  the  Constitution  and  laws  of  the 
United  States,  and  the  practice  of  the  national  courts  ;  such  pur 
chase  to  be  made  under  the  direction  of  those  charged  with  the 
purchase  of  books  for  that  library. 

I  remain,  with  great  respect,  your  obedient  servant, 

B.  R.  CURTIS. 
CHARLES  W.  ELIOT,  ESQ.,  President,  Harvard  College. 

In  1873,  after  the  death  of  Chief  Justice  Chase,  there 
were  many  important  persons  who  desired  that  the  office 
should  be  tendered  to  Judge  Curtis.  There  was,  however, 
very  little  probability  that  their  wishes  would  be  gratified. 
Expressions  of  such  wishes  reached  him  from  many  quar 
ters,  and  he  spoke  to  me  freely  concerning  them.  He  said 
that,  if  the  offer  were  made  to  him,  it  would  oblige  him  to 
decide  a  very  embarrassing  question,  one  which  he  hoped 
he  should  never  have  to  consider.  The  following  note  Avas 
entirely  in  accordance  with  the  private  expression  of  his 
feelings  to  me  and  others. 

To  THE  HON.  REVERDY  JOHNSON. 

BOSTON,  May  23,  1873. 

MY  DE\R  MR.  JOHNSON,  —  I  thank  you  for  your  kind  letter. 
If  I  am  to  consult  and  be  governed  by  my  own  personal  wishes, 
I  can  say  that  I  do  not  want  the  office  of  Chief  Justice,  and  shall 
be  better  pleased  to  have  it  offered  to  another  than  to  myself. 
At  the  same  time,  if  it  should  be  tendered  to  me,  I  should  be  put 
to  the  decision  of  a  very  grave  question,  which  I  do  not  see  that 
I  am  now,  or  probably  shall  be,  required  to  decide. 

For  your  own  kind  appreciation,  I  beg  you  to  believe  I  am 
grateful.  There  is  no  man  living  who  knows  better  than  yourself 
what  that  place  requires  and  involves  ;  and  as  you  have  known  me 


1874.]  DEATH   OF   HIS   DAUGHTER.  445 

as  a  judge  and  as  a  member  of  our  profession  for  a  long  time,  and 
under  changing  and  difficult   circumstances,  I  value  very  highly 
your  estimation  of  my  fitness  for  this  great  office. 
With  great  respect  and  regard,  I  am,  dear  Sir, 

Your  obedient  servant, 

B.  R.  CURTIS. 

In  the  month  of  February,  1874,  another  sorrow  came  to 
weigh  heavily  on  his  energies,  and  to  tax  his  paternal  sym 
pathies.  His  second  daughter,  a  married  woman  and  mother 
of  young  children,  died  in  Pittsfield  at  this  time.1 

To  GEORGE  T.  CURTIS. 

BOSTON,  March  2,  1874. 

DEAR  BROTHER,  —  I  thank  you  for  your  kind  and  consoling 
letter.  It  was  very  pleasant  to  me.  I  returned  from  Pittsfield 
depressed,  not  only  in  mind,  but  body;  but  have  been  gradually 
gaining  strength,  though  I  am  in  the  doctor's  hands.  I  keep  em 
ployed  in  small  ways,  well  knowing  this  is  best,  and  if  called  to 
Washington  shall  go,  as  both  Mallie  and  I  think  it  will  be  useful 
to  me.  Of  course  she  will  go  with  me.  Do  not  suppose  I  am 
really  ill,  but  for  the  time  I  am  not  as  well  as  usual.  I  will  en 
deavor  to  let  you  know  when  I  pass  through  New  York.  Give 
my  love  to  Louise. 

Yours  always,  B.  R.  CURTIS. 

When  I  saw  him  in  New  York,  a  short  time  after  this 
note  was  written,  I  observed  a  considerable  change  in  him. 
There  was  the  same  calmness  of  spirit,  the  same  clear  and 
well-poised  intellect,  the  same  determination  to  do  the  duty 
of  the  passing  day,  and  the  same  mental  power  to  do  it. 
But  it  was  evident  that  the  sorrows  which  I  have  men 
tioned,  and  others  which  have  needed  no  mention,  had 
told  upon  his  physical  system.  He  was  greatly  depressed. 
Perhaps  it  would  have  been  better  for  him  if  he  had  now 
refrained  from  work.  But  it  had  always  been  his  rule  — 

1  Elizabeth  Ticknor  Curtis,  born  in  Boston,  June  15,  1836;  married  to 
John  Proudfit  Brown,  of  Pittsfield,  January  15,  1862;  died  at  Pittsfield, 
February  21,  1874. 


446  MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.  [1874. 

one  of  his  habitual  methods  for  preserving  his  submission  to 
the  will  of  God — to  be  constantly  employed.  He  knew 
his  own  nature  best ;  and  I  therefore  think  it  was  a  wise  de 
termination  for  him,  not  to  withdraw  from  the  active  duties 
of  his  profession.  They  demanded  great  efforts ;  but,  with 
his  experience  and  his  familiarity  with  the  subjects  that 
came  before  him,  he  could  make  all  the  efforts  that  were 
required.  They  involved,  undoubtedly,  a  very  high  class  of 
professional  studies  and  exertions  ;  but  he  had  long  walked, 
with  a  free  and  firm  step,  upon  the  loftiest  ranges  of  the 
law,  and,  notwithstanding  his  depression  of  spirits  and  some 
loss  of  physical  strength,  his  step  did  not  now  falter. 

There  are  recorded  in  his  Opinion  Books,  between  the 
months  of  April,  1873,  and  June,  1874,  some  of  the  ablest 
and  most  elaborate  of  this  class  of  productions  that  he  ever 
wrote;1  and  one  of  the  most  striking  arguments  that  he  ever 
made  was  delivered  in  the  Circuit  Court  of  the  United  States 
at  Hartford,  on  the  19th  of  September,  1873.  It  related  to 
the  constitutional  validity  of  an  act  of  Congress,  which  had 
authorized  a  suit  in  equity  to  be  brought,  in  the  name  of 
the  United  States,  against  the  Union  Pacific  Railroad  Com 
pany,  its  stockholders  and  bond-holders,  in  any  Circuit. 
Judge  Curtis's  argument  on  this  entirely  new  and  very 
important  question  could  not  have  occupied  in  the  delivery 
more  than  half  an  hour,  —  such  was  its  condensation  and 
its  rejection  of  all  superfluous  matter.  It  is  placed  in  the 
second  volume  of  this  work.2 

In  the  latter  part  of  June,  1874,  he  went  with  his  family 

1  Two  of  these  opinions,  signed  respectively  on  the  24th  of  April  and  the 
30th  of  June,  1874,  related  to  the  constitutional  validity  of  acts  of  the  Legis 
latures  of  Wisconsin  and  Iowa,  each  of  which  affected  vitally  the  interests 
of  important  railroad  companies  and  their  bond-holders. 

'2  I  have  been  requested  by  a  professional  friend  who  was  concerned  in 
this  case  to  have  this  argument  included  in  the  present  collection  of  Judge 
Curtis's  productions,  as  a  model  forensic  speech,  and  an  admirable  specimen 
of  his  manner.  The  last  cause  which  he  argued  in  the  Supreme  Court  of  the 
United  States  was  that  of  The  Do/far  Sanwjs  /3«uk  v.  The  United  States, 
reported  in  19  Wallace,  227.  It  was  argued  January  22,  1874. 


1874.]  LAST  ILLNESS.  447 

to  pass  the  summer  months  in  Newport,  having  rented  a 
commodious  house  situated  011  the  highest  ground  of  that 
city  of  villas.  After  the  1st  of  July,  his  health  began  to 
fail,  and  he  went  very  little  abroad,  unless  it  was  to  drive 
in  a  carriage.  He  passed  the  greater  part  of  every  day 
sitting  or  walking  upon  the  piazza  of  his  house,  in  the  fine 
air  of  that  region,  and  reading  light  books.  He  performed 
no  labor,  and  saw  no  one  on  business.  Towards  August, 
he  became  seriously  ill,  and  remained  in  his  chamber. 
Early  in  that  month,  lie  desired  that  I  should  be  informed 
of  his  illness.  I  went  to  him  at  once.  On  the  morning 
of  my  arrival,  I  passed  several  hours  with  him  alone.  He 
was  dressed,  but  did  not  leave  his  couch.  He  conversed 
naturally,  and  not  without  cheerfulness,  seemed  to  be  in 
terested  in  what  was  going  on  in  the  world,  and  did  not 
intimate  that  he  did  not  expect  to  be  again  well.  Indeed, 
I  was  so  much  reassured  by  my  private  conference  with 
the  attending  physician,  who  had  been  exceedingly  watch 
ful  of  the  case,  and  who  attributed  the  symptoms  to  general 
debility  rather  than  to  any  organic  disease,  that  I  returned 
to  my  home,  believing  that  a  nourishing  diet,  rest,  and  the 
sea  air  would  restore  him.  When  I  left  him  he  took  leave 
of  me  without  emotion,  and  with  kind  messages  to  my 
family.  Neither  of  us  thought  that  we  were  never  to  meet 
again. 

In  a  short  time  after  my  visit  alarming  symptoms  began 
to  appear.  Dr.  Gray,  of  Utica,  a  very  eminent  practitioner, 
happening  to  be  in  Newport,  was  called  in  consultation. 
The  following  letter  informed  me  that,  although  the  case 
had  become  very  grave,  there  was  still  great  hope. 

NEWPORT,  Sept.  1. 

In  answer  to  your  kind  letter  this  morning,  —  I  was  only  too 
happy  to  telegraph  you  the  joyful  hope  the  doctors  left  with  us 
this  morning.  We  esteem  it  a  special  providence  that  Dr.  Gray 
has  been  here,  and  able  to  give  the  most  careful  attention  to  the 
Judge's  case.  .  .  .  There  was  every  threatening  of  hemorrhage  of 


448  MEMOIR    OF   BENJAMIN   BOBBINS    CURTIS.  [1874. 

the  brain ;  but  under  the  treatment  of  Dr.  Gray  such  quiet,  restful 
sleep  has  been  obtained,  and  the  other  symptoms  so  controlled, 
that  they  say  this  morning  they  feel  the  crisis  to  have  passed, 
and  that  the  Judge  will  get  well.  On  Thursday  last  they  felt  the 
greatest  anxiety ;  .  .  .  but  he  yielded  to  the  medicines  wonderfully, 
and  all  his  conditions  are  more  natural.  I  have  a  trained  nurse, 
as  I  found  after  six  weeks  of  watching  I  gave  out.  We  keep  the 
utmost  quiet,  the  doctors  not  wishing  the  Judge  to  use  his  mind 
in  the  least,  and  he  lies  on  his  bed,  with  an  occasional  change  to 
the  couch  for  relief.  There  must  still  be  weeks  of  care  and  rest 
before  a  complete  cure. 

I  hope  Dr.  Metcalfe  will  not  come  here  especially  to  see  the 
Judge,  unless,  after  Dr.  Gray  leaves,  there  should  be  a  recurrence 
of  unfavorable  symptoms,  when  I  would  telegraph  either  for  him 
or  for  our  own  physician,  Dr.  Clarke,  in  whose  opinion  the  Judge 
has  great  faith.  I  can  say  nothing  upon  this  subject,  or  any  other, 
to  the  Judge  in  his  present  condition,  but  in  a  few  days  we  hope  he 
will  be  able  to  make  "  decisions  "  for  himself. 

Resting  easy  under  these  assurances,  I  waited  for  further 
intelligence  from  my  friend,  Dr.  John  T.  Metcalfe,  of  New 
York,  who,  I  knew,  had  gone  to  Newport.  On  the  15th 
of  September,  I  received  the  following  note,  written  on  the 
previous  day  :  — 

NEWPORT,  Sept.  14,  1874. 

MY  DEAR  CURTIS,  —  T  have  been  here  since  Thursday  evening 
last.  Every  day  I  have  seen  your  brother,  with  Dr.  Sands.  The 
Judge  has  for  a  long  time  been  in  such  a  condition  as  to  make  his 
medical  advisers  uneasy  with  regard  to  his  future  health  ;  but  since 
yesterday  his  condition  has  grown  much  worse.  .  .  . 

I  see  no  reasonable  hope  for  any  amendment.  .  .  . 

I  shall  probably  remain  here  several  days  longer,  and  will  tele 
graph  you,  in  case  any  very  alarming  symptoms  arise. 
In  haste,  very  sincerely  yours, 

JOHN  T.  METCALFE. 

After  the  receipt  of  this  note,  I  prepared  to  leave  imme 
diately  for  Newport,  on  the  16th  ;  but  in  the  morning  of 
that  day,  while  I  was  on  my  way  from  my  summer  resi 
dence  on  Long  Island  to  the  city  of  New  York,  I  met  the 


1874.]  A   WELL-SPENT  LIFE.  449 

public  news  that  my  brother  had  died  on  the  15th.  I  could 
only  reach  Boston  in  season  to  join  with  others  in  following 
his  remains  to  their  last  resting-place  in  Mt.  Auburn. 
There  we  laid  what  was  mortal,  u  looking  for  the  general 
resurrection  in  the  last  day." 

When  the  golden  bowl  is  broken,  what  boots  it  to  know 
why  its  charmed  circle  did  not  longer  remain  intact? 
"  The  days  of  our  age  are  threescore  years  and  ten ;  and 
though  men  be  so  strong  that  they  come  to  fourscore  years, 
yet  is  their  strength  then  but  labor  and  sorrow ;  so  soon 
passeth  it  away,  and  we  are  gone." 

It  was  not  given  to  this  man  to  attain  even  the  shorter 
period  which  the  Psalmist  allots  as  the  measure  of  our  days. 
Yet  his  was  a  complete  and  rounded  life.  Its  whole  dura 
tion  was  a  little  less  than  sixty-five  years  ;  its  term  of 
activity,  after  the  time  of  education  had  passed,  was  but 
forty-two.  Without  the  stimulus  of  ambition,  as  that  pas 
sion  is  commonly  felt  and  manifested,  and  with  the  sense  of 
duty  as  its  habitual  guide,  —  freed  from  the  love  of  applause 
which  weakens  and  from  the  fear  of  man  which  betrays,  — 
his  life  was  a  greater  blessing  to  its  possessor,  and  to  those 
whom  it  most  nearly  touched,  than  are  the  lives  of  many 
who  seek  and  win  what  are  called  the  prizes  of  the  world. 
Of  him,  it  might  be  said,  in  the  quaint  words  of  Wotton's 
hymn  :  — 

"  How  happy  is  he  born  or  taught, 

That  serveth  not  another's  will ; 
Whose  armor  is  his  honest  thought, 
And  simple  truth  his  utmost  skill!  " 

I  have  seen  discussions  in  which  it  has  been  debated 
whether  he  was  a  great  man ;  and  have  read  what  has  been 
said  upon  either  side  of  that  very  unimportant  question.  I 
can  concur  with  one  who  has  said :  "  It  does  not  admit  of 
denial  that  Mr.  Curtis's  character  bore  that  genuine  stamp 
of  greatness  which  cannot  be  counterfeited  or  disputed,  the 
test  of  which  is  the  spontaneous  recognition  and  homage  of 
VOL.  i.  29 


450  MEMOIR   OF    BENJAMIN   BOBBINS    CUKTIS.  [1874. 

men.  Everywhere  and  at  all  times,  on  the  bench,  at  the 
bar,  in  every  assembly,  whether  large  or  small,  in  the  most 
select  company  and  in  general  society,  his  presence  was 
impressive  and  commanding.  No  man,  however  great, 
could  look  down  upon  him.  Very  few  could  feel  them 
selves  to  be  his  peers.  Most  men,  even  those  of  a  high 
order  of  mind  and  character,  intuitively  acknowledged  his 
supremacy."  : 

I  have  quoted  these  words,  because  I  suppose  they  will 
be  ratified  by  the  general  testimony  of  those  who  knew 
him  ;  and  because  the  reverend  author,  when  he  referred 
to  the  supremacy  that  wras  acknowledged,  meant  that  it 
was  acknowledged  without  being  claimed.  But  if  the  ques 
tion  of  his  greatness  must  be  raised,  and  I  were  to  record 
that  which  best  expresses  my  own  sense  of  his  rank  among 
men,  I  should  add  a  little  to  old  Wotton's  idea  of  human 
felicity,  and  should  suggest,  that,  as  the  "honest  thought  " 
was  in  this  case  the  thought  of  an  intellect  of  the  highest 
order,  as  the  "  simple  truth  "  was  drawn  from  the  deep 
fountains  of  reason,  and  made  useful  in  human  affairs  by  all 
that  learning  and  experience  could  do  for  them,  there  was 
enough  for  greatness,  upon  any  rational  test  of  that  grade 
of  character.  In  one  thing,  surely,  it  will  be  allowed  that 
he  was  great ;  for,  throughout  life,  he  had  been  mindful  of 
the  prayer,  and  had  received  its  answer,  "  So  teach  us  to 
number  our  days,  that  w^e  may  apply  our  hearts  unto 
wisdom." 

It  is  a  common  observation,  that  the  fame  of  lawyers, 
even  when  they  have  been  very  distinguished  in  their  day 
and  generation,  is  an  evanescent  fame.  It  is  not  often  that 
the  most  brilliant  abilities  of  the  advocate,  or  the  most  pro 
found  learning  of  the  judge,  produce  impressions  upon 
society  which  cause  them  to  be  long  personally  remem 
bered.  But  there  have  been  lawyers  and  judges  whose 

1  Dr.  Robbins's  Memoir,  read  before  the  Massachusetts  Historical  So 
ciety. 


1874]  INDEPENDENCE   OF   CHARACTER.  451 

fame  lias  been  lasting,  and  of  whom  liberal  minds  in  after 
ages  seek  to  have  all  the  knowledge  that  can  be  attained, 
even  if  they  have  left  nothing  but  what  was  uttered  at  the 
bar,  or  delivered  from  the  bench.  He  whose  life  I  have 
now  traced  was  of  the  highest  rank,  in  both  capacities.  It 
may  be,  that  his  name  will  be  enrolled  among  the  few 
great  lawyers  of  whom  the  world  perpetually  takes  notice. 
But  if  what  I  have  said  of  him  shall  prove  to  be  only  for 
those  who  knew  and  loved  or  honored  him,  it  may  not  have 
been  written  in  vain. 

After  his  death,  the  members  of  that  bar  into  whose 
crowded  competitions  he  came  at  the  age  of  twenty-five, 
who  had  known  him  as  advocate,  judge,  citizen,  and  friend, 
as  no  others  could  have  known  him,  assembled  to  pay  their 
tributes  to  his  character.  They  were  men  who  could  not 
have  stood  over  his  grave  to  utter  an  unmeasured  or  an 
unmerited  word ;  and  when  they  had  expressed  what  they 
felt  to  the  tribunal  over  which  he  had  once  presided,  there 
came  from  his  successor  an  elaborate  portraiture  of  his  pro 
fessional  and  public  character,  in  which  the  tenderness  of  the 
friend  mingled  with  the  judgment  of  the  magistrate.1  Sim 
ilar  proceedings  took  place  at  the  bar  of  the  Supreme  Court 
of  the  United  States.2  These  honorable  tributes  are  on  the 
public  records  of  the  country. 

For  me,  it  has  seemed  enough  to  allow  the  course  of  his 
life,  his  actions,  his  motives,  and  his  aims,  to  describe  what 
he  was.  When  this  has  been  done  faithfully,  readers  of 
biography  do  not  need  an  extended  and  formal  portrayal  of 
character. 

Still  there  is  one  trait  on  which  I  may  dwell,  because  it 
marked  his  whole  life,  and  gave  singular  force  to  all  his 
actions,  —  I  mean  his  peculiar  independence. 

1  The  reply  of  Mr.  Justice  Clifford  to  the  address  of  the  bar  of  the  Cir-. 
cuit  Court,  together  with  the  other  proceedings,  was  published  in  a  pamphlet; 
but  the  whole  is  of  too  great  extent  to  be  repeated  in  this  work. 

2  These  proceedings  are  contained  in  the  20th  volume  of  Wallace's  Ee- 
ports,  pp.  i.-xiv.     They  occurred  on  the  13th  of  October,  1874. 


452  MEMOIR   OF   BENJAMIN   BOBBINS    CURTIS.  [1874. 

In  speaking  in  a  former  chapter  of  the  change  in  his 
religious  sentiments,  I  have  observed  that  it  was  not  fol 
lowed  by  any  change  in  his  religious  life.  The  indepen 
dence  of  thought,  feeling,  and  action,  of  which  I  am  about 
to  speak,  if  not  derived  from,  was  strongly  tinctured  by,  the 
religious  feelings  which  were  always  a  part  of  his  character 
from  his  earliest  days.  Independence  is  a  quality  which, 
when  not  sustained  by  a  religious  faith,  may  lead  its  posses 
sor  into  too  great  a  disregard  of  the  opinions  of  his  fellow- 
men.  When  it  is  united  with  any  tendency  to  religious 
fanaticism,  it  may  do  great  mischief  in  the  wroiid.  When 
it  exists  along  with  a  sober,  rational,  and  moderated  faith, 
it  substitutes  in  the  place  of  human  applause,  as  the  guide 
or  aim  of  life,  the  highest  standard  by  which  life  can  be 
regulated. 

It  will  be  admitted  by  all  who  knew  the  man  of  whom  I 
speak,  that  they  have  rarely  known  any  one,  constantly  en 
gaged  in  the  affairs  of  a  conspicuous  profession,  and  having 
great  power  to  attain  worldly  distinction,  who  yet  cared  so 
little  for  the  praise  of  men.  "  Trahimur .  omnes  studio 
laudis  et  optimus  quisque  maxime  gloria  ducitur."  These 
were  the  words  of  one  who  never  knew  the  superior  force 
of  that  sense  of  duty,  which  another  civilization  than  the 
Roman  has  substituted  for  the  love  of  glory.  Cicero — for 
it  is  he  who  declares  that  human  applause  is  with  the  best 
men  the  main-spring  of  good  actions  —  tells  uu  that  virtue 
itself  can  desire  no  greater  reward  for  labors  and  perils, 
than  the  reward  of  praise  and  glory.  If  this  is  withdrawn, 
what  is  there,  he  asks,  for  which,  in  such  a  narrow  and 
brief  course  of  existence  as  ours,  we  should  occupy  ourselves 
with  such  labors?1  The  great  Roman  lawyer  understood 
himself,  and  he  understood  the  men  among  whom  he  lived 
and  acted.  But  perhaps  he  did  not  know  that,  because  the 

1  "Nullam  enim  virtus  aliam  mercedem  laborum  periculoruinque  desi- 
derat  praeter  hanc  laudis  et  gloriae;  quae  quidem  detracta,  judices,  quid  est 
quod  in  hoc  tarn  exiguo  vitae  curriculo  et  tarn  brevi  tantis  nos  laboribus 
exerceamus." 


1874.]  INDIFFEKENCE  TO   APPLAUSE.  458 

pursuit  of  what  lie  called  glory  was,  in  the  best  life  of  his 
age  and  country,  the  chief  object  and  the  strongest  motive 
of  individual  action,  the  state  had  no  deep  foundation  in 
the  noblest  forms  of  human  character.  It  had  institutions, 
jurisprudence,  power,  wealth,  culture,  letters,  arts ;  but  in 
all  that  splendid  civilization  there  was  no  higher  individual 
motive  than  the  love  of  personal  distinction.  It  is  true 
that  Cicero,  in  that  love  of  fame  which  he  makes  the  strong 
principle  of  our  nature,  comprehends  the  desire  to  stand 
high  in  the  estimation  of  posterity  ;  and  he  puts  posthu 
mous  fame  as  the  one  great  object  which  enables  the  soul 
to  endure  the  exertions  of  this  life.  But  it  is,  after  all,  the 
hope  of  making  our  own  names  illustrious,  which  he  assigns 
as  the  grand  stimulus  of  our  labors,  and  which  he  considers 
as  alone  adequate  to  render  them  endurable. 

Certainly  it  is  not  to  be  claimed  that  what  we  call  the 
Christian  civilization  has  eradicated  the  love  of  glory  from 
the  human  heart ;  or  that  the  desire  for  distinction  is  incon 
sistent  with  the  religious  character.  We  know,  sometimes 
to  our  cost,  that,  both  in  great  and  little  men,  ambition  is 
still  a  most  powerful  incentive.  But  that  which  may  be 
claimed  for  modern  society  is,  that  it  can  and  does  produce 
men,  in  whom  there  is  another  principle  of  action  ;  and 
who,  though  they  may  have  begun  life  with  the  ordinary 
desire  for  worldly  distinction,  learn,  as  they  grow  older,  that 
there  is  a  better  and  safer  principle  to  sustain  their  exer 
tions  than  the  love  of  applause.  It  is  because  there  are 
men  who  come  to  learn  this,  that  modern  society  is  some 
times  saved  from  the  mischiefs  which  would  otherwise  be 
brought  upon  it  by  those  who  never  do  learn  it. 

In  the  case  of  the  person  whom  I  have  endeavored  to 
describe,  the  indifference  to  praise  arose  from  no  contempt 
for  mankind,  and  from  no  disposition  to  reject  human  sym 
pathy.  It  arose  from  a  naturally  elevated  temperament, 
which  had  been  cultivated  into  a  fixed  moral  condition  ;  one 
which  made  his  desire  and  intention  to  do  his  duty,  "  in  that 


454         -    MEMOIR   OF   BENJAMIN   BOBBINS   CURTIS.          [1874. 

state  of  life  to  which  it  had  pleased  God  to  call  him,"  so 
superior  to  the  dictates  of  ambition  that  the  conviction  that 
he  had  done  his  duty  was  always  his  sufficient  reward.  To 
do  what  he  considered  to  be  right,  —  to  do  it  bravely,  disin 
terestedly,  when  he  was  called  upon  to  make  sacrifices,  and 
without  the  smallest  regard  to  the  opinions  of  men  when 
the  thought  of  their  opinions  might  have  deterred  him  from 
doing  it,  —  became  the  habit  of  his  life.  His  was  a  large  and 
grand  nature,  in  which  nothing  petty  or  narrow  mingled. 
He  never  sought  honors  of  any  kind ;  and  those  which 
came  to  him  unsought  never  seemed  to  stir  his  pride  to 
any  weak  manifestation  that  he  had  gained  a  coveted 
distinction.  He  was  glad  to  have  a  national  reputation  . 
but  lie  spoke  of  it,  when  to  those  nearest  and  dearest  to 
him  he  spoke  of  it  at  all,  with  a  kind  of  childlike  sim 
plicity  and  humility. 

The  world  at  large  did  not  know  the  gentleness  and 
sweetness  of  his  nature ;  for  these  are  things  that  are  not 
revealed  by  such  a  man,  save  in  his  domestic  circle,  or 
among  his  most  intimate  friends  ;  and  one  whom  the  world 
has  been  accustomed  to  regard  as  only  grave  and  cold  or 
stern,  it  does  not  expect  to  learn  was  tender,  ever  thoughtful 
of  the  feelings  of  others,  and  habitually  charitable  in  his 
judgments.  Yet  that  this  was  true  of  him,  his  contempo 
raries  who  knew  it  have  abundantly  testified.  It  some 
times  happened  to  him,  as  it  will  happen  to  all  men  in 
important  positions,  that  he  wras  made  the  object  of  foul 
and  unjust  aspersions.  But  even  against  the  authors  of  such 
calumnies  he  never  allowed  his  indignation  to  carry  him  be 
yond  a  just  exposure  or  rebuke  of  the  injury  which  they  were 
doing  to  the  best  interests  of  society,  by  their  assaults  upon 
one  who  for  the  time  had  those  interests  in  his  keeping. 
Any  injury  which  they  could  do  to  his  reputation  as  a 
magistrate,  when  he  held  a  high  judicial  place,  or  that  the 
public  would  permit  them  to  try  to  do,  was  a  matter,  as  he 
once  expressed  it,  of  far  greater  concern  to  the  public  itself 


1874.]  FINAL  ESTIMATE.  455 

than  it  was  to  him ;  and  at  all  periods  of  his  life  he  was 
content  to  leave  his  motives  to  be  judged  by  his  acts. 

For  the  rest,  —  for  the  measure  of  his  intellect,  for  the 
true  position  that  should  be  assigned  to  him  as  a  jurist, 
and  for  the  estimate  of  his  rank  among  the  important  men 
of  his  time,  —  I  leave  what  is  here  written  to  the  decisions 
of  the  present,  and  to  the  correcting  review  of  future  gen 
erations,  who  may  take  notice  of  his  character,  or  cherish 
his  name. 


APPENDIX. 


I. 

WALTER  CURTIS. 

WALTER  CURTIS,  second  son  of  Judge  Curtis,  and  the 
oldest  of  his  sons  who  grew  to  manhood,  was  born  in  Boston, 
February  3,  1838.  He  entered  Harvard  College  in  1856, 
but  in  consequence  of  ill-health  he  left  that  institution  in 
1£59,  without  taking  a  degree.  He  first  engaged  in  a 
banking  business  in  Iowa,  in  which  he  was  not  successful. 
On  the  breaking  out  of  the  civil  war,  he  received  a  commis 
sion  in  one  of  the  Massachusetts  Regiments  of  Volunteers. 
In  November,  1862,  he  was  detailed  and  commissioned  as 
Assistant  Quartermaster  of  Volunteers,  with  the  rank  of 
Captain.  He  served  in  that  capacity  at  Washington,  until 
the  1st  of  January,  1864,  when  he  resigned.  Such  were 
his  accuracy  and  method,  that,  on  the  settlement  of  his 
accounts  at  the  War  Office,  involving  very  large  sums  of 
money,  they  were  found  to  be  correctly  balanced  to  within 
a  fraction  of  a  dollar. 

He  returned  to  Boston,  studied  law,  was  admitted  to  the 
bar  in  1866,  and  immediately  took  a  high  rank.  In  intellect 
he  strongly  resembled  his  father.  He  had  the  same  power 
of  clear  statement,  the  same  logical  and  concise  method  of 
reasoning,  and  the  same  habit  of  simple,  strong,  and  direct 
presentation  of  a  case.  It  was  a  common  remark  at  the 
Boston  bar,  that,  in  listening  to  Mr.  Walter  Curtis,  if  one 


458  APPENDIX. 

did  not  look  at  him  it  was  difficult  to  believe  that  it  was 
not  his  father  who  was  speaking.  Yet  the  son  was  not  an 
imitator  of  the  father.  They  resembled  each  other  because 
nature  had  cast  their  intellects  in  the  same  mould. 

After  a  successful  practice  of  ten  years,  failing  health 
rendered  it  expedient  for  him  to  make  an  overland  journey 
to  the  Pacific  coast.  On  his  return,  he  was  seized  with 
pneumonia,  and  died  at  Omaha  on  the  31st  of  August, 
1876,  at  the  age  of  thirty-eight,  leaving  a  widow  and  three 
children.  Competent  judges,  who  had  every  opportunity 
to  appreciate  this  young  man,  regarded  him  as  capable  of 
rivalling  his  father  ;  and  there  can  be  no  more  severe  ordeal 
for  any  man  than  that  which  he  must  encounter  by  such  a 
comparison.  I  might  have  spoken  of  my  brother's  estimate 
-of  his  son  ;  but  remembering  the  cases  of  the  elder  and  the 
younger  Burke,  and  what  paternal  partiality  is,  1  have  here 
recorded  of  my  nephew  the  judgments  of  others  only,  as  I 
have  received  them. 

Judge  Curtis's  eldest  son  and  eldest  daughter  died  in 
childhood,  in  1842.  The  second  daughter,  who  lived  to 
womanhood,  died,  as  has  been  mentioned,  in  1874.  Three 
young  children,  a  son  and  two  daughters,  died  in  18G7  and 
1871.  Two  sons  and  three  daughters  survive. 


SUSPENSION   OF    THE   HABEAS    CORPUS.  459 


II. 


NOTE   ON  PRESIDENT  LINCOLN'S  PROCLAMATION  SUSPEND 
ING  THE   WRIT  OF   HABEAS   CORPUS,   ETC. 

SINCE  the  text  and  note  on  page  366,  in  regard  to  this 
Proclamation,  were  printed,  it  has  been  ascertained,  at  the 
State  Department,  that  an  original  of  the  Proclamation  is 
now  on  file,  but  it  bears  no  mark  indicating  the  time  when 
it  was  deposited.  The  proclamation,  when  printed  in  the 
"  National  Intelligencer,"  at  Washington,  bore  date  Sept.  24, 
18152,  and  purported  to  be  under  the  seal  of  the  United 
States,  and  to  be  in  due  form  signed  by  the  President  and 
countersigned  by  the  Secretary  of  State.  Where  the  origi 
nal  was  during  the  interval  between  the  publication  of  the 
twelfth  volume  of  the  Statutes  at  Large  (1862),  and  the 
publication  of  the  thirteenth  volume  (1866),  or  whether 
there  was  an  original  during  that  period,  I  have  not  been 
able  to  ascertain. 

President  Lincoln  had,  previously  to  the  date  of  this 
proclamation,  acted  upon  the  assumption,  in  particular 
cases,  that  he  could  suspend  the  writ  of  habeas  corpus  in 
the  case  of  persons  who  had  been  arrested  and  were  in  con 
finement  by  any  military  authority,  although  they  were 
merely  citizens.  Thus,  in  the  case  of  John  Merryman, 
which  occurred  at  Baltimore,  in  May,  1861,  the  commander 
of  Fort  McHenry,  in  making  return  on  Chief  Justice 
Taney's  writ  for  the  production  of  the  body  of  the  prisoner, 
informed  the  Chief  Justice  that  he  was  "  duly  authorized 
by  the  President  of  the  United  States,  in  such  cases,  to  sus 
pend  the  writ  of  habeas  corpus  for  public  safety."  The 
Chief  Justice  issued  an  attachment  against  the  command 
ing  officer  for  a  contempt  in  not  obeying  the  writ ;  but 
as  the  Marshal  had  not  the  necessary  means  to  execute 
the  attachment  against  a  superior  military  force,  the  Chief 


460  APPENDIX. 

Justice  excused  him  from  the  performance  of  that  duty, 
and  put  on  file,  and  sent  to  the  President,  his  written 
opinion  that  u  the  President,  under  the  Constitution  of  the 
United  States,  cannot  suspend  the  privilege  of  the  writ  of 
habeas  corpus,  nor  authorize  a  military  officer  to  do  it." 
This  elaborate  opinion  exhausted  the  whole  subject  of  the 
President's  supposed  power  to  suspend  the  writ,  or  to  ar 
rest  and  confine  persons  not  subject  to  the  rules  and  arti 
cles  of  war,  for  any  offence  against  the  United  States, 
except  in  aid  of  the  judicial  authority  and  subject  to  its 
control.  u  No  official  notice,"  said  the  Chief  Justice,  "  has 
been  given  to  the  courts  of  justice,  or  to  the  public,  by 
proclamation  or  otherwise,  that  the  President  claimed  this 
power,  and  had  exercised  it  in  the  manner  stated  in  the 
return.  And  I  certainly  listened  to  it  with  some  surprise, 
for  I  had  supposed  it  to  be  one  of  those  points  of  constitu 
tional  law  upon  which  there  was  no  difference  of  opinion, 
and  that  it  was  admitted  on  all  hands  that  the  privilege 
of  the  writ  could  not  be  suspended  except  by  act  of  Con 
gress."  He  concluded  his  very  dignified  and  forcible  dis 
cussion  of  this  subject  as  follows:  — 

"  In  such  a  case  my  duty  was  too  plain  to  be  mistaken.  I  have 
exercised  all  the  power  which  the  Constitution  and  laws  confer 
upon  me,  but  that  power  has  been  resisted  by  a  force  too  strong 
for  me  to  overcome.  It  is  possible  that  the  officer  who  has  in 
curred  this  grave  responsibility  may  have  misunderstood  his  instruc 
tions,  and  exceeded  the  authority  intended  to  be  given  him.  I 
shall,  therefore,  order  all  the  proceedings  in  this  case,  with  my 
opinion,  to  be  filed  and  recorded  in  the  Circuit  Court  of  the  United 
States  for  the  District  of  Maryland,  and  direct  the  Clerk  to  trans 
mit  a  copy,  under  seal,  to  the  President  of  the  United  States.  It 
will  then  remain  for  that  high  officer,  in  fulfilment  of  his  constitu 
tional  obligation,  to  '  take  care  that  the  laws  be  faithfully  executed,' 
to  determine  what  measures  he  will  take  to  cause  the  civil  process 
of  the  United  States  to  be  respected  and  enforced. 

"  11.  B.  TANEY, 

Chief  Justice  of  the  Supreme  Court  of  the  U.  S." 


SUSPENSION  OF  THE  HABEAS  CORPUS.       461 

Nevertheless,  arbitrary  arrests  of  persons  not  subject  to 
the  rules  and  articles  of  Avar  continued  to  be  made  in  places 
where  the  courts  of  the  United  States  were  in  the  full  exer 
cise  of  their  authority,  sometimes  by  the  order  of  the  Sec 
retary  of  State,  and  sometimes  by  the  order  of  the  War 
Department;  and  on  the  24th  of  September,  1862,  as  if  to 
give  some  color  of  legality  to  this  exercise  of  power,  the 
Proclamation  was  published,  on  which  Judge  Curtis  com 
mented  in  his  pamphlet  entitled  "  Executive  Power."  An 
account  of  the  whole  proceedings  in  Merryman's  case, 
and  a  full  copy  of  the  opinion  of  the  Chief  Justice,  may 
be  found  in  tho  Appendix  to  his  Memoir  by  Mr.  Tyler, 
pp.  640-659. 

There  is  no  parallel  case,  that  I  am  aware  of,  of  a  refusal 
of  the  Executive  to  be  governed  by  a  decision  of  the  judi 
cial  department  of  the  government  on  a  question  relating 
to  the  executive  powers.  Many  Presidents  have  differed 
from  the  constitutional  views  of  Congress,  and  have  refused 
to  sign  bills  on  which  they  have  held  that  the  measures 
proposed  were  not  warranted  by  the  Constitution.  The 
most  notable  instance,  perhaps,  is  that  of  General  Jack 
son's  refusal  to  sign  a  bill  rechartering  the  Bank  of  the 
United  States,  because  he  held  that  Congress  had  no  con 
stitutional  authority  to  grant  the  original  charter,  although 
the  Supreme  Court  of  the  United  States  had  decided  that 
Congress  had  full  constitutional  power  to  do  so.  Mr.  Web 
ster's  powerful  argument  in  opposition  to  the  President's 
veto  message,  while  it  admitted  that  each  branch  of  the 
legislature  has  an  undoubted  right,  in  the  exercise  of  its 
functions,  to  consider  the  constitutionality  of  a  law  pro 
posed  to  be  passed,  yet  maintained  that,  when  a  law  lias 
once  been  passed,  and  signed  by  the  President,  and  its  con 
stitutional  validity  has  been  affirmed  by  a  judgment  of  the 
Supreme  Court,  neither  the  same  President  nor  his  succes 
sors  is  or  are  at  liberty  to  say  whether  it  is  constitutional 
or  not.  Whatever  may  be  thought  of  this  doctrine,  as  ap- 


462  APPENDIX. 

plied  to  the  President's  participation  in  legislation,  there  is 
an  obvious  reason  why,  in  the  exercise  of  executive  powers, 
the  President  is  bound  by  a  decision  of  the  judicial  depart 
ment  on  the  existence  or  non-existence  of  the  power  which 
he  claims.  That  reason  is,  that  the  citizen  has  nothing  but 
the  judiciary  to  which  to  appeal  against  executive  acts.  If 
it  be  true  that  the  judiciary  was  created  to  act  upon  the 
constitutional  validity  of  laws,  when  they  affect  the  rights 
of  the  citizen,  it  must,  a  fortiori,  be  true  that  its  decision 
that  an  executive  act  which  affects  a  citizen  is  unconstitu 
tional,  is  binding  upon  the  President.  Otherwise,  the  Presi 
dent  is  the  sole  judge  of  the  extent  of  his  powers ;  and  if 
he  will  not  submit  to  judicial  decision,  there  is  no  limit  to 
the  powers  which  he  may  practically  exercise. 


DEATH   OF   MH.  WEBSTER.  463 

m. 

DEATH  OF  ME.  WEBSTER. 

WHILE  Chapter  VI.  of  this  volume  was  passing  through 
the  press,  I  had  not  access  to  the  proceedings  which  took 
place  in  the  Circuit  Court  of  the  United  States  for  the 
First  Circuit,  on  the  28th  of  October,  1852,  on  the  occa 
sion  of  Mr.  Webster's  death.  I  have  since  obtained  a  copy 
of  the  remarks  of  Judge  Curtis  in  reply  to  the  resolutions 
of  the  Bar,  and  insert  them  here  :  — 

I  receive  with  deep  sensibility  the  resolutions  of  the  Bar,  and 
the  remarks  of  yourself,  Mr.  Attorney,  and  of  the  other  gentlemen 
who  have  addressed  us.  The  death  of  this  illustrious  statesman 
and  jurist  has  produced  a  profound  impression  everywhere  in  the 
country  to  whose  service  he  devoted  his  life,  and  will  be  felt  as  an 
event  not  unimportant  in  the  civilized  world. 

Among  the  gentlemen  of  this  Bar,  of  which  he  was  a  member, 
with  very  many  of  whom  he  held  relations  of  private  friendship, 
and  for  whom,  as  a  body,  he  was  ever  ready  to  manifest  a  frater 
nal  regard,  and  in  this  Court,  which,  for  more  than  thirty  years,  he 
has  enlightened  and  assisted  by  his  labors,  a  deep  feeling  of  pri 
vate  grief  mingles  itself  with  our  sense  of  the  public  loss.  How 
great  this  loss  is  cannot  be  described,  for  it  cannot  now  be  even 
known.  The  darkness  of  the  future  covers  the  dangers  which  the 
Providence  of  God  may  permit  our  country  to  encounter,  and 
hides  from  view  our  needs  for  the  patriotism  and  surpassing  men 
tal  power  of  Mr.  Webster.  In  a  government  depending  for  its 
existence  on  opinion,  the  withdrawal  of  a  mind  which  exercised  so 
great  an  influence  for  the  preservation  and  stability  of  our  country, 
not  only  in  the  public  councils,  but  among  the  people  themselves, 
is  a  loss  indeed. 

We  submit  ourselves  to  it  as  inevitable,  as  having  come  at  the 
time  appointed  by  the  will  of  Him  in  whose  hand  is  the  destiny  of 
nations  and  of  men.  and  with  gratitude  that  so  much  has  been 
accomplished  by  him,  and  so  much  left  for  the  instruction  of  this 


464  APPENDIX. 

and  future  times.  Of  his  services  and  works  as  a  statesman,  I  can 
say  nothing  after  what  others  have  said. 

But  receiving  these  communications  from  his  brethren  of  the 
Bar,  I  am  strongly  reminded  of  the  importance  to  them  of  the 
memory  and  fame  of  this  great  lawyer.  The  illustrious  names 
and  great  deeds  which  centuries  have  gathered  are  the  richest 
treasures  of  a  nation.  The  masterpieces  of  literature  and  art 
dignify  the  pursuits  in  which  they  were  produced. 

We  may  claim  Daniel  Webster  as  an  American  lawyer.  Born 
during  the  war  of  the  Revolution,  in  a  family  which  took  an 
honorable  part  in  that  great  struggle,  he  was  imbued  from  his 
infancy  with  American  ideas  and  principles.  He  was  reared  in 
the  simple  habits  of  a  New  England  home.  He  was  forced  early 
into  the  rough  and  invigorating  contact  with  nature  among  the 
mountains  where  he  had  his  birthplace.  He  was  trained  in  the 
college  of  his  native  State.  He  studied  our  common  law ;  for 
although  it  was  painfully  wrought  out  from  age  to  age  in  another 
land,  yet  it  was  by  our  ancestors,  and  I  thank  God  that,  by  as 
good  a  title  as  can  be  shown  under  its  rules,  it  is  our  healthy  and 
manly  intellectual,  as  well  as  political  inheritance.  He  knew  it  as 
it  is  in  Littleton,  in  his  great  commentator,  and  in  Plowden  and 
Saunders,  as  well  as  in  its  more  modern  sources.  His  mind  was 
imbued  with  its  logic,  and  its  peculiar  style  was  as  familiar  to  him 
as  that  of  Taylor  or  Milton.  Its  fundamental  principles  had  become 
a  part  of  the  structure  of  his  mind,  and  under  these  new  skies  he 
maintained  and  advanced  those  great  principles  of  personal  liberty 
under  the  law  and  by  the  law,  and  the  absolute  security  of  private 
property,  which  constitute  the  vital  power  of  the  common  law. 
But  it  must  not  be  forgotten,  for  the  honor  of  American  jurispru 
dence,  and  for  his  honor,  that  he  entered  a  field  such  as  has  existed 
nowhere  else  in  any  age. 

It  was  and  is  one  of  the  excellences  of  the  Constitution  of  the 
United  States,  that  it  did  not  attempt  too  much,  that  it  is  neither  a 
treatise  nor  a  code,  but  a  simple  enumeration  of  the  great  powers 
and  principles  necessary  to  constitute  the  government  of  our  coun 
try.  When  this  government  was  put  into  operation  in  the  same 
territory  and  over  the  same  people,  having  distinct  State  govern 
ments  of  their  own,  questions  of  the  last  importance  to  the  tran 
quillity  and  peace  of  the  country,  and  to  the  efficiency  and  success 
of  the  new  government,  necessarily  arose.  Few  men  whose  atteii- 


DEATH   OF   MR.  WEBSTER.  465 

tion  has  not  been  particularly  directed  to  this  subject,  are  aware 
of  the  number,  the  importance,  or  the  difficulty  of  these  questions. 
A  country,  already  vast  in  extent,  and  whose  resources,  in  a  rapid 
course  of  development,  were  incalculable,  —  whose  people,  after 
great  suffering,  had,  by  their  own  acts,  become  a  nation,  —  had  cre 
ated  a  court  of  justice,  and  delegated  to  it  the  power,  and  imposed 
upon  it,  under  the  most  solemn  sanctions,  the  duty  of  declaring 
void  all  legislative  acts  not  in  conformity  with  the  Constitution,  and 
of  restraining  within  their  appropriate  limits  of  power  the  State 
sovereignties  under  which  the  people  lived. 

Questions  which  elsewhere  could  have  been  settled  only  by  mere 
force,  or  by  diplomatic  negotiations,  which  force  influences,  were 
here  to  be  brought  to  an  arbitrament,  according  to  the  staid,  settled, 
and  regular  course  of  judicial  procedure. 

Into  these  contests  Mr.  Webster  entered,  and  for  them  he  was 
fitted,  I  think,  as  no  other  man  has  been.  He  brought  to  these 
great  debates  extensive  and  accurate  historical  learning,  especially 
concerning  the  Constitution  itself  ;  a  clearness  of  conception,  com 
prehensiveness  of  grasp,  and  logical  power  never  surpassed  ;  and 
to  all  these  was  added  a  command  of  the  English  tongue,  which, 
for  demonstrative  oratory,  has,  I  think,  not  been  equalled. 

We  may  all  conceive,  what  many  yet  know,  that  he  was  able  to 
render,  and  did  render  to  his  country,  and  to  the  cause  of  justice 
and  peace,  the  most  eminent  service,  in  this  unobtrusive  but  impor 
tant  scene  of  action.  And  we  shall  make  but  poor  use  of  his  great 
example  if  we  do  not  borrow  from  it  higher  conceptions  and 
broader  views  of  the  capacities  and  duties  of  his  and  our  profession. 
Of  even  the  most  prominent  causes  of  great  and  permanent  public 
importance  in  which  Mr.  Webster  was  engaged,  there  is  not  time 
here  to  speak,  but  it  may  be  said  generally,  without  doing  any 
injustice  to  the  great  magistrates  by  whom  they  were  determined, 
what  indeed  they  were  ever  ready  to  acknowledge,  th.it  they 
derived  most  important  assistance  from  the  labors  of  Mr.  Webster. 

It  is  the  general  destiny  of  lawyers  to  leave  behind  them  but 
few  traces,  and  no  monuments,  of  their  intellectual  labor.  Elo 
quence  and  learning,  and  devotion  to  duty,  and  strenuous  effort, 
and  high  courage,  serve  their  uses  of  the  day,  and  doubtless  find 
their  regard  in  the  breast  of  their  possessor,  but  with  him  often 
dies  even  their  memory.  How  little  do  we  know  of  the  forensic 
arguments  of  Ames,  or  Dexter,  or  Otis.  Vague  impressions  of 
VOL.  i.  30 


466  APPENDIX. 

their  power  still  linger  on  the  fleeting  recollections  of  a  few  living 
men,  to  depart,  when  they  go  home,  arid  leave  no  trace  behind. 

To  a  very  considerable  extent  Mr.  Webster  will  probably  not 
partake  of  this  ordinary  lot  of  his  brethren.  Many  of  his  forensic 
arguments  have  been  made  in  causes  of  such  great  and  permanent 
importance,  they  are  so  admirable  in  themselves,  and  in  genera] 
have  been  so  well  preserved,  that  they  may  be  expected  to  be 
recurred  to  and  studied  while  the  Constitution  shall  endure. 

What  estimate  posterity  may  form  of  the  importance  to  them  of 
this  part  of  his  labors,  it  would  be  presumptuous  in  us  to  attempt 
to  decide.  But  for  ourselves  we  can  declare,  that  he  who  has 
strengthened  the  foundations  of  the  Constitution,  and  shielded  it 
from  hostile  attack,  and  made  apparent  to  the  affections  of  the 
people,  the  strength  and  beauty  of  its  proportions  and  the  peace 
and  safety  which  are  to  be  found  only  within  its  walls,  has  ren 
dered  to  us  a  service  not  lightly  to  be  esteemed  or  soon  forgotten. 

That  in  this  I  do  but  feebly  express  what  this  nation  now  feels, 
no  man  can  doubt.  To  what  has  been  so  eloquently  said  at  the 
Bar  concerning  his  life  and  his  death,  it  cannot  be  necessary  that  I 
should  express  iny  assent.  But  I  desire  to  say,  what  I  strongly 
feel  and  what  it  must  gratify  every  man  who  loves  his  country  to 
feel,  that  the  death  of  Mr.  Webster  has  given  us  a  new  and  affect 
ing  proof  that  we  are  indeed  one  people,  united  by  a  common 
attachment  to  our  country  and  to  its  great  institutions  and  princi 
ples,  and  to  the  men  who  represent  and  uphold  them ;  that  undei 
neath  the  strife  of  parties  and  the  more  miserable  contests  of  sec 
tions  and  factions,  deep  in  the  American  heart  is  a  love  of  the 
whole  country,  and  therefore  it  is  that  from  that  heart  has  come 
the  utterances  of  grief,  which  arise  everywhere  over  this  broad 
land  ;  grief  for  the  loss  of  the  man  whose  heart  was  large  enough, 
and  whose  mind  was  comprehensive  enough,  to  include  this  Union, 
with  all  its  interests,  and  dependencies,  and  opinions,  and  obliga 
tions,  and  rights.  And  the  great  principles  which  he  had  so 
powerfully  taught  in  his  life,  receive  from  his  death  a  new  sanc 
tion  by  his  countrymen. 


CASES  AKGUED  FEOM   1836  TO   1851.  467 


IV. 


CASES  ARGUED  BEFORE  THE  SUPREME  JUDICIAL  COURT 
OF  MASSACHUSETTS,  FROM  1836  TO  1851. 

GREENLEAF  v.  FRANCIS,  18  Pickering,  117.  Trespass  on  the  case 
for  diverting  water. 

CLAPP  v.  LEATHERBEE,  18  Pick.  131.  Writ  of  entry  to  recover 
certain  mortgaged  premises. 

WIGGIN  v.  SUFFOLK  INS.  Co.,  18  Pick.  145.  Assumpsit  to  re 
cover  insurance  on  property  on  board  a  brig. 

WIGGIN  v.  AMERICAN  INS.  Co.,  18  Pick.  158.     Same. 

TUCKER  v.  BOSTON,  18  Pick.  162.     Writ  of  entry. 

STURTEVANT  v.  ROBINSON,  18  Pick.  175.     Scire  facias. 

COMMONWEALTH  v.  AVES,  lb  Pick.  193.     The  slave  Med. 

CURL  v.  LOWELL,  19  Pick.  25.  Trespass  for  breaking  and  en 
tering. 

COREY  v.  COREY,  19  Pick.  29.     Assumpsit  for  work  and  labor. 

HODGES  v.  HOLLAND,  19  Pick.  43.     Promissory  note. 

EMERSON  v.  BAYLIES,  19  Pick   5o.     Assumpsit.     Partner. 

WHITWELL  v.  BRIGHAM,  19  Pick.  117.  Assumpsit.  Bill  of  Ex 
change. 

WILLIAMS  v.  RUSSELL,  19  Pick.  162.     Bill  in  equity. 

SALE  v.  PRATT,  19  Pick.  191.  Trespass  for  entering  close  and 
removing  sea*weed. 

STARBUCK  v.  NEW  ENG.  MARINE  INS.  Co.,  19  Pick.  198.  Insur 
ance. 

PARK  MAN  v.  WELCH,  19  Pick.  231.  Bill  in  equity  to  redeem 
certain  parcels  of  land. 

JELLISON  r.  LAFONTA,  19  Pick.  244.     Principal  and  Agent. 

TISDALE  v.  HARRIS,  20  Pick.  9.     Statute  of  Frauds. 

MILLS  v.  GORE,  20  Pick.  28.  Bill  in  equity  to  compel  redelivery 
of  a  deed. 

OVERSEERS  OF  THE  POOR  OF  BOSTON  v.  OTIS,  20  Pick.  38.  Writ 
of  right. 

HEWES  v.  PARKMAN,  20  Pick.  90.  Trover  against  an  officer  for 
an  attachment  of  the  goods  of  a  firm. 

HEWES  v.  BAYLEY,  20  Pick.  96.     Partner. 


468  APPENDIX. 

TRASK  v.  VINSON,  20  Pick.  105.     Promissory  notes. 

ADAMS  v.  HAFFARDS,  20  Pick.  127.     Trespass  for  assaulting  and 

beating. 
SALISBURY  v.  BIGELOW,  20  Pick.  174.     Bill  in  equity  to  compel 

the  specific  performance  of  an  agreement  for  the  purchase  of 

land. 

HALL  v.  JACKSON  AND  TR.,  20  Pick.  194.     Trustee  process. 
CLAPP   v.   TIRRELL,   20    Pick.  247.     Writ   of  entry   to    recover 

lands. 
HOLLAND  v.   CRUFT,  20   Pick.  321.     Bill  in  equity  to  set  aside  a 

fraudulent  assignment. 
WHITAKER  v.  SUMNER,  20  Pick.  899.    Trover  against  a  sheriff  for 

merchandise. 

GODDAKD  v.  CITY  OF  BOSTON,  20  Pick.  407.     Petition  for  assess 
ment  of  value  of  land  taken  for  a  street. 
LORING  v.  NEPTUNE  Ixs.  Co.,  20  Pick.  411.     Insurance. 
COMMONWEALTH  v.  FARMERS'  AND  MECHANICS'  BANK,  21   Pick. 

542.     Bill  in  equity  by  Bank  Commissioners  to  enjoin  bank. 
BOSTON  MANUF.  Co.  v.  INHABITANTS  OF  NEWTON,  22  Pick.  22. 

Taxation  of  water  power. 
TAUNTON  COPPER  Co.  v.  MERCHANTS'  INSURANCE  Co.,  22  Pick. 

108.     Insurance. 

STONE  v.  FOWLE,  22  Pick.  166.     Promissory  note. 
REYNOLDS  v.  OCEAN  INS.  Co.,  22  Pick.  191.     Insurance. 
LOWELL,  APPELLANT,  ETC.,  22  Pick.  215.     Appeal  from  a  decree 

of  the  Judge  of  Probate. 

HOOPER  v.  JELLISON  AND  TRS.,  22  Pick.  250.     Trustee  process. 
M'GAW  v.  OCEAN  INS.  Co.,  2:3  Pick.  405.     Insurance. 
JACKSON  v.  MASS.  MUTUAL  FIRE  INS.  Co.,  23  Pick.  418.     Insur 
ance. 

WIGGIN  v.  TUDOR,  23  Pick.  434.     Action  for  rent. 
HENSIIAAV  v.  SUMNER,  23  Pick.  446.     Trespass  against  a  sheriff 

for  taking  and  carrying  away  certain  merchandise. 
ALL  EX  v.  KIMBALL,  23  Pick.  473.  Promissory  note. 
BISHOP  v.  SHEPHERD,  23  Pick.  492.  Assumpsit  for  the  services  of 

minor  son. 
BRYANT  v.  RUSSELL,  23  Pick.  510.     Bill  in  equity  to  enforce  the 

execution  of  a  trust. 

WHITWELL  v.  WELLS,  24  Pick.  25.     Replevin  for  goods. 
WHITE  v.  PATTEN,  24  Pick.  324.     Writ  of  entry. 


CASES   ABGUED   FROM  1836  TO   1851.  469 

WHITWELL  ET  ALS.  v.  BURNSIDE,  1  Metcalf,  39.     Bond. 

REYNOLDS  v.  OCEAN  INS.  Co.,  1  Met.  160.  Insurance  abandon 
ment. 

WHITWELL  ET  ALS.  v.  WILLARD,  1  Met.  21 G.     Auditor. 

JOHNSON  v.  JORDAN,  2  Met.  234.  Trespass  for  breaking  and  enter 
ing  close,  &c. 

BROOKS  ET  AL.  v.  WHITE,  2  Met.  283.     Promissory  note. 

CARNEGIH  ET  AL.  v.  MORRISON  ET  AL.,  2  Met.  381.  Assumpsit 
founded  on  a  letter  of  credit. 

ORIENTAL  BANK  v.  HAWKINS,  3  Met.  332.     Writ  of  entry. 

STEVENSON  ET  ALS.  AXD  PKUIT  ET  ALS.  v.  AUSTIN  ET  ALS.,  3  Met. 
474.  Bill  in  equity  to  determine  title  to  certain  goods. 

GRAY  v.  BENNETT,  3  Met.  522.  Bill  in  equity  to  recover  usurious 
interest. 

RICHARDSON  v.  SUFFOLK  INS.  Co.,  3  Met.  573.     Insurance. 

ATLAS  BANK  v.  NAIIANT  BANK,  3  Met.  581.     Insolvent  Bank. 

ORIENTAL  BANK  v.  TREMONT  INS.  Co.,  4  Met.  1.     Insurance. 

MAC!VAY  v.  HOLLAND,  4  Met.  69.     Promissory  note. 

WINSOR  ET  AL.  v.  DILLAWAY,  4  Met.  221.  Action  for  a  commission 
for  sale  of  a  brig. 

JACKMAN  v.  BOWKER,  4  Met.  235.     Order. 

CARTER  v.  SIBLEY,  4  Met.  298.  Trespass  for  taking  and  carrying 
away  goods. 

HEARD  v.  PROPRIETORS  OF  MIDDLESEX  CANAL,  5  Met.  81.  Land 
damage. 

GARY  v.  DANIELS,  5  Met.  236.  Trespass  on  the  case  for  the  ob 
struction  of  a  stream. 

GOULD  v.  GOULD  ET  AL.,  5  Met.  274.     Bill  in  equity.     Mistake. 

BLANCIIARD  v.  STEARNS  ET  ALS.,  5  Met.  298.  Action  against 
selectmen  for  refusing  to  put  name  on  voting  list. 

WRIGHT  v.  DAME  ET  ALS.,  5  Met.  485.  Bill  in  equity  to  charge 
with  execution  of  a  trust. 

TALBOT  v.  CAINS,  5  Met.  520.     Trespass  on  the  case. 

COFFIN  v.  HEATH  ET  AL.,  6  Met.  76.  Bill  in  equity.  Lien  on 
land. 

DENNY  ET  AL.  v.  CABOT  ET  ALS.,  6  Met.  82.  Assumpsit  for  goods 
sold  and  delivered. 

STEDMAN  v.  EVELETH,  6  Met.  114.  Trespass  against  a  sheriff  for 
selling  certain  stocks. 

ATKINS  v.  CIIILSON  ET  ALS.,  7  Met.  398.  Bill  in  equity.  Ease 
ment. 


470  APPENDIX. 

PROPRIETORS  OF  HOLLTS  STREET  MEETING  HOUSE  v.  PIER  PONT, 
7  Met.  495.  Bill  of  discovery. 

AUSTIN  v.  CHARLESTOWN  FEMALE  SEMINARY,  8  Met.  19G.  Writ 
of  entry. 

GARY  v.  DANIELS,  8  Met.  466.  Trespass  on  the  case.  Obstruc 
tion  of  water  privilege. 

HOWARD  v.  BATES  ET  AL.,  8  Met.  484.  Complaint  for  flowing 
land. 

DAVIS  ET  ALS.  v.  SIGOURNEY,  8  Met.  487.     Will. 

ST.  Louis  PERPETUAL  INS.  Co.  v.  HOMER,  9  Met.  39.  Promissory 
note. 

PIPER  v.  RICHARDSON,  9  Met.  155.     Writ  of  entry. 

BAKER  ET  ALS.  v.  ATLAS  BANK  ET  ALS.,  9  Met.  182.  Bill  in 
equity.  Bank. 

GREENE  ET  ALS.  v.  GODDARD,  9  Met.  212.  Breach  of  con 
tract. 

KINGSBURY  ET  ALS.  v,  GOULD,  EXECUTOR,  9  Met.  282.     Trust. 

WINSOR  v.  SAVAGE,  9  Met.  346.  Assumpsit  to  recover  balance  of 
account. 

LEWIS  ET  AL.  v.  BROOKS,  9  Met.  367.     Promissory  note. 

BARING  ET  ALS.  v.  CRAFTS,  9  Met.  380.  Assurnpsit  to  recover 
balance  of  account. 

BATES  v.  WILLARD,  10  Met.  62.  Trespass  on  the  case  against  a 
sheriff  for  alleged  default  of  his  deputy. 

GREW  v.  BREED  ET  ALS.,  10  Met.  569.     Bill  in  equity.     Bank. 

MURDOCK    ET    ALS.    V.    MlLLS    ET    ALS.,     11     Met.    5.       Bills  of  CX- 

change. 

GUILDS  ET  ALS.  v.  RUSSELL  ET  AL.,  11  Met.  16.     Will. 

COMMONWEALTH  v.  PHCENIX  BANK,  11  Met.  129.     Bank. 

DESHON  v.  MERCHANTS'  INS.  Co.,  11  Met.  199.     Insurance. 

PYNCIION  v.  STEARNS,  11  Met.  304.     Waste. 

PYNCHON  v.  STEARNS,  11  Met.  312.     Writ  of  entry. 

LEWIS  ET  AL.  v.  BROOKS,  12  Met.  304.     Promissory  note. 

GREW  ET  ALS.  v.  BREED  KT  ALS.,  12  Met.  363.     Bank. 

SMITH  r.  HURD  ET  ALS.,  12  Met.  371.  Action  on  the  case  for 
nonfeasance  and  misfeasance. 

TREMONT  BANK  v.  CITY  OF  BOSTON,  1  Gush.  142.  Taxation  of 
real  estate  of  bank. 

WHEELER  v.  STONE  ET  ALS.,  1  Gush.  313.  Suit  to  recover  a  cer 
tain  wharf  and  flats. 


CASES   ARGUED  FROM   1836  TO   1851.  471 

DRAKE  v.  CURTIS,  1  Gush.  395.     Same. 

CODMAN  AND  WIFE  v.  COFFIN,  2  Cush.  365.    Specific  performance 

of  contract. 

MEIGS  v.  THE  MUTUAL  MARINE  INS.  Co.,  2  Cush.  439.    Insurance. 
VINCENT  v.  SPOONER,  2  Cush.  467.     Action  to  recover  dower. 
NELSON,  DISTRICT  ATTORNEY,  v.  GUSHING  ET  ALS.,  2  Cush.  519. 

Will. 

PIERCE  v.  INHABITANTS  OF  CAMBRIDGE,  2  Cush.  fill.     Taxation. 
COMMONWEALTH   v.    BOSTON   AND    MAINE   R.   II.,  3   Cush.   25. 

Land  damage. 
FITCHBURG  R.  R.  Co.  v.  BOSTON  AND  MAINE  R.  R.,  3  Cush.  58. 

Land  damage. 

STEVENS  v.  BLANCHARD  ET  AL.,  3  Cush.  169.     Promissory  note. 
HAYES  v.  THE  WESTERN  RAILROAD  CORPORATION,  3  Cush.  270. 

Action  by  a  brakeman  to  recover  for  injuries  received. 
SH ELTON  v.  CODMAN  ET  AL.,  3  Cush.  318.     Covenant  of  peaceable 

possession. 

CARTER  v.  HOLBROOK  ET  ALS.,  3  Cush.  331.     Partnership. 
BROWN  ET  AL  v.  LAWRENCE  ET  ALS.,  3  Cush.  390.    Writ  of  entry. 
CASCO  MANUFACTURING  Co.  v.  DIXON  ET  AL.,  3  Cush.  407.     Ac 
tion  on  the  case  by  a  buyer  of  cotton  for  false  and  fraudulent 
packing  thereof. 

CORNELL  v.  JACKSON,  3  Cush.  506.     Action  for  covenant  broken. 
CHASE  v.  THE  SUTTON  MANUFACTURING  Co.,  4  Cush.  152.     Com 
plaint  for  flowing  land. 
BOWERS  v.  SUFFOLK  MANUFACTURING  Co.,  4  Cush.  332.     Action 

on  the  case  for  the  disturbance  of  a  right  of  way. 
EDWARDS  v.  SUMNER,  4  Cush.  393.    Assumpsit  for  money  had  and 

received. 
TOWLE  v.  KETTKLL  ET  AL.,  5  Cush.  18.     Assumpsit  to  recover 

for  the  charter  or  freight  of  a  vessel. 
CHACE  ET  ALS.  v.  BROOKS,  5  Cush.  43.     Assumpsit  on  a  contract 

of  guaranty. 
BAKER  v.  ADAMS,  5  Cush.  99.     Writ  of  entry  to  recover  possession 

of  a  dwelling-house. 
FORBES  v.  APPLETON,  5  Cush.  115.     Voluntary  payment  under 

a  claim  of  right. 

ROBINSON  v.  BAKER,  5  Cush.  137.     Replevin. 
MELLEDGE  v.  THE  BOSTON  IRON  Co.,  5  Cush.  158.     Assumpsit 
for  goods  sold  and  delivered. 


472  APPENDIX. 

TALLMAN  v.  TALLMAN,  5  Cush.  325.     Action  on  an  award. 

PARKER  v.  MAY  ET  ALS.,  5  Cush.  336.  Information  for  the  pur 
pose  of  preventing  the  misapplication  of  certain  funds. 

BOSTON  AND  LOWELL  R.  R.  Co.  v.  BOSTON  AND  MAINK  R.  R.,  5 
Cush.  375.  Trespass  on  the  case. 

CITY  OF  ROXBURY  v.  BOSTON  AND  PROVIDENCE  R.  R.  CORPO 
RATION,  6  Cush.  424.  Bill  in  equity  to  compel  defendants  to 
raise  a  highway. 

HUNNEWELL  v.  TAYLOR  ET  ALS.,  6  Cush.  472.     Partition. 

BROWN  v.  WEBBER  AND  TRUSTEE,  6  Cush.  560.     Trustee  process. 

COMMONWEALTH  v.  ALGER,  7  Cush.  53.  Constitutional  law. 
Harbor. 

BOSTON  v.  CAPEN,  7  Cush.  116.     Bond. 

HOLBROOK  v.  JACKSON  ET  AL.,  7  Cush.  136.  Assumpsit  for  goods 
sold  and  delivered. 

REGGIO  ET  AL.  v.  BRAGGIOTTI  ET  AL.,  7  Cush.  166.  Trespass  on 
the  case  for  breach  of  warranty. 

MASSACHUSETTS  IRON  Co.  v.  HOOPER  ET  ALS,  7  Cush.  183. 
Lien. 

SALTONSTALL  ET  ALS.  v.  PROPRIETORS  OF  LONG  WHARF,  7  Cush. 
195.  Writs  of  right. 

SMITH  v.  CITY  OF  BOSTON,  7  Cush.  254.     Land  damage. 

BAKER  ET  ALS.  v.  MANUFACTURERS'  INS.  Co.,  7  Cush.  Appendix. 
Insurance. 

ADAM  ET  ALS.  v.  BRIGGS  IRON  Co.,  7  Cush.  361.  Bill  in  Equity. 
Mining  land. 


OPIXIOXS  OF  THE  SUPREME  COURT  OF  THE  UXITED 
STATES  DELIVERED  BY  JUDGE  CURTIS,  FROM  1851 
TO  1857. 

NEILSON  v.  LAGOW  ET  AL.,  12  Howard,  98.     Courts  of  the  United 

States. 

RUSSELL  v.  SOUTHARD  ET  ALS.,  12  How.  139.     Mortgage. 
WILBUR  v.  ALMY,  12  How.  180.     Mortgage.     Trust. 
ACHISON   v.   HUDDLESON,  12   How.   293.     Taxes.     Cumberland 

Road. 


OPINIONS   IN  THE  SUPREME  COURT  OF   THE  U.  S.      473 

COOLEY  v.  THE  BOARD  OF  WARDENS  OF  THE  PORT  OF  PHILA 
DELPHIA,  ETC.,  12  How.  299.  Constitutional  law.  Pilots  and 
pilotage. 

McCORMiCK  v.  GRAY,  13  How.  26.     Partnership. 

BUCKINGHAM  v.  McLEAN,  13  How.  150.     Bankrupt. 

NEVES  v.  SCOTT,  13  How.  268.     Courts  of  the  United  States. 

PHIL.,  AViL.,  &  BAL.  R.  R.  Co.  v.  HOWARD,  13  How.  307.  Cove 
nant. 

VERY  v.  LEVY,  13  How.  345.     Equity. 

HAGAN  v.  WALKER,  14  How.  29.     Equity. 

SILSBY  v.  FOOTE,  14  How.  218.     Patent.     Juror. 

CHRISTY  v.  SCOTT,  14  How.  282.     Ejectment. 

CHRISTY  v.  FINDLEY,  14  How.  296.     Same. 

CHRISTY  r.  YOUNG,  14  How.  296.     Same. 

CHRISTY  v.  HENLEY,  14  How.  297.     Same. 

GENERAL  MUTUAL  INS.  Co.  v.  SHERWOOD,  14  How.  351.  In 
surance. 

WEBSTER  v.  COOPER,  14  How.  488.     Devise. 

KANOUSE  v.  MARTIN,  15  How.  198.     Courts  of  the  United  States. 

GARROW  v.  DAVIS,  15  How.  272.     Equity. 

CURRAN  v.  STATE  OF  ARKANSAS,  15  How.  304.  Constitutional 
law. 

WINANS  v.  DENMEAD,  15  How.  330.     Patent. 

TURNER  v.  YATF.S,  16  How.  14.     Writ  of  error. 

STUART  v.  MAXWKLL,  16  How.  150.     Revenue  law. 

CARROLL  v.  CARROLL'S  LESSEE,  16  How.  275.     Will. 

STEAMBOAT  NEW  WORLD  v.  KING,  16  How.  469.  Master  and 
servant. 

LAWRENCE  v.  MINTURN,  17  How.  100.     Ships  and  shipping. 

SHIELDS  v.  BARROW,  17  How.  130.     Equity. 

RING  v.  MAXWELL,  17  How.  147.     Revenue  law. 

UNITED  STATES  v.  NICKERSON,  17  How.  204.     Fisheries. 

HENDRICKSON  v.  HINCKLEY,  17  How.  443.     Equity. 

STEVENS  v.  GLADDING,  17  How.  447.     Equity. 

CHRISTY  v.  ALFORD,  ADMR.,  17  How.  601.     Limitation. 

SMITH  v.  STATE  OF  MARYLAND,  18  How.  71.  Constitutional 
law. 

BUSH  v.  COOPER'S  ADMINISTRATOR,  18  How.  82.  Bankrupt 
act. 

RICHARDS  ET  AL.  v.  HOLMES  ET  AL.,  18  How.  143.     Trusts. 


474  APPENDIX. 

SCHOONER  FREEMAN,  ETC.  v.  BUCKINGHAM  ET  AL.,  18  How.  182. 

Admiralty  ]aw. 

MCLAUGHLIN  v.  SWANN  ET  AL.,  18  How.  217.     Attachment. 
MURRAY'S  LESSEE  ET  AL.  v.  HOBOKEN  LAND  AND  IMPROVEMENT 

Co.,  18  How.  272.     Constitutional  law. 

KINSMAN  ET  AL.  v.  PABKIIURST,  18  How.  289.     Patent  rights. 
LAFAYETTE  INS.  Co.  v.  FRENCH  ET  AL.,  18  How.  404.     Corpora 
tion  law. 

CROCKETT  ET  AL.  v.  NEWTON,  18  How.  581.     Collision. 
CONNER  ET  AL.  v.  ELLIOTT  ET  AL.,  18  How.  591.     Constitutional 

law. 

THOMAS  ET  AL.  v.  OSBORN,  19  How.  22.     Commercial  law. 
BETTS  v.  LEWIS  AND  WIFE,  19  How.  72.     Practice. 
UNITED  STATES  v.  LE  BARON,  19  How.  73.     Bond.     Deed. 
DUPONT  DE   NEMOURS   &   Co.  v.  VANCE  ET  AL.,  19  How.  162. 

Commercial  law. 
COMMERCIAL  MUTUAL  MARINE  INS.  Co.  v.  UNION  MUTUAL  INS. 

Co.,  19  How.  318.     Contract. 
McREA  ET  AL.  v.  BRANCH  BANK  OF  ALABAMA,  19  How.  376. 

Practice. 

BULKLEY  v.  HONOLD,  19  How.  390.     Vessels. 
STURGIS,  PLFF.  IN  ERROR,  v.  HONOLD,  19  How.  393.     Same. 


CASES  ARGUED  BEFORE  THE  SUPREME  JUDICIAL  COURT 
OF  MASSACHUSETTS,  FROM  1857  TO  1874. 

MERCHANTS'  BANK  OF  NEWBURYPOET  v.  STEVENSON  ET  ALS., 
10  Gray,  232.  Corporation  law. 

BOSTON  AND  MAINE  R.  R.  v.  BARTLETT  ET  AL.,  10  Gray,  384. 
Equity. 

HENSHAW  ET  AL.  v.  BANK  OF  BELLOWS  FALLS,  10  Gray,  568. 
Railroad. 

WHITTENTON  MILLS  v.  UPTON  ET  ALS.,  10  Gray,  582.  Corpora 
tion  law. 

BANGS  v.  LINCOLN  ET  AL.,  10  Gray,  600.     Insolvent  debtors. 

ROGERS  ET  AL  v.  JACKMAN  ET  AL.,  12  Gray,  144.  Assignee  in 
insolvency. 


CASES   ARGUED   FKOM   1857   TO   1874.  475 

RUSSELL  v.  HOWE,  12  Gray,  147.     Constitutional  law. 

PINGREE  v.  COFFIN  ET  ALS.     12  Gray,  288.     Equity. 

COLE  ET  ALS.  v.  UNION  MUTUAL  INS.  Co.,  12  Gray,  501.  Ma 
rine  insurance. 

BAKER  ET  ALS.  v.  MANUFACTURERS'  INS.  Co.,  12  Gray,  603. 
Marine  Insurance. 

ROGERS  ET  AL.  v.  CURRIER  ET  ALS.,  13  Gray,  129.     Ship  lien. 

RICH  v.  ROGERS  ET  ALS.,  14  Gray,  174.     Will. 

ELLICOTT  ET  ALS.  v.  ALLIANCE  INS.  Co.,  14  Gray,  318.  Marine 
insurance. 

BIGELOW  v.  INHABITANTS  OF  RANDOLPH,  14  Gray,  541.     Town. 

GRAND  JUNCTION  RAILROAD  AND  DEPOT  Co.  ET  AL.  v.  COUNTY 
COMMISSIONERS  OF  MIDDLESEX,  14  Gray,  553.  Railroad. 

ERICKSON  ET  ALS.  v.  NESMITH,  15  Gray,  221.     Action. 

HARTSHORN  ET  AL.  v.  SHOE  AND  LEATHER  DEALERS'  INS.  Co., 
15  Gray,  240.  Marine  Insurance. 

MOTTE  v.  ALGER  ET  AL.,  15  Gray,  322.     Disseisin. 

MICHIGAN  STATE  BANK  v.  GARDNER  ET  ALS.,  15  GRAY,  362. 
Equity.  Principal  and  agent. 

CUNNINGHAM  ET  ALS.  v.  MUNROE,  ADMINISTRATOR,  15  Gray,  471. 
Payment.  Partnership. 

SHAW  ET  ALS.  v.  NORFOLK  COUNTY  R.  R.  Co.  ET  ALS.,  16  Gray, 
407.  Railroad.  Equity  pleading. 

FAY  v.  ALLIANCE  INS.  Co.,  16  Gray,  455.     Marine  insurance. 

PARSONS  ET  AL.  v.  MANUFACTURERS'  INS.  Co.,  16  Gray,  463. 
Marine  insurance. 

MIDDLESEX  MANUFACTURING  Co.  v.  LAWRENCE  ET  ALS.,  EXEC 
UTORS.  1  Allen,  339.  Bond. 

PADDOCK  AND  FIELD  v.  COMMERCIAL  INS.  Co.,  2  Allen,  93.  Ma 
rine  insurance. 

MERRILL  v.  BOYLSTON  FIRE  AND  MARINE  INS.  Co.,  3  Allen,  247. 
Marine  insurance. 

WILLIAMS  ET  AL.  v.  BRADLEY  ET  ALS.,  3  Allen,  270.     Will. 

COMMONWEALTH  v.  BANK  OF  MUTUAL  REDEMPTION,  4  Allen,  1. 
Bank. 

ERICKSON  ET  ALS.  v.  NESMITH  ET  ALS.,  4  Allen,  233.  Corpora 
tion  law. 

CUNNINGHAM  ET  ALS.  v.  HALL,  4  Allen,  268.     Warranty. 

COMMONWEALTH  v.  TOWNSEND,  5  Allen,  216.     Practice. 

BAYLIES  ET  ALS.  v.  PAYSON,  5  Allen,  473.     Equity. 


476  APPENDIX. 

SMITH  v.  BOSTON  AND  MAINE  R.  R.,  6  Allen,  262.     Contract. 

DOLE  ET  AL.  v.  NEW  ENGLAND  MUTUAL  MARINE  INS.  Co.,  6 
Allen.  373.  Insurance. 

INHABITANTS  OF  PLYMOUTH  v.  RUSSELL  MILLS,  7  Allen,  438. 
Equity. 

MERCHANTS'  BANK  OF  NEWBURYPORT  v.  STEVENSON  ET  ALS. 
7  Allen,  489.  Equity. 

BARNARD  ET  AL^.  v.  VERMONT  AND  MASSACHUSETTS  R.  R.  Co., 
7  Allen,  512  Corporation  law. 

CITIZENS'  MUTUAL  FIRE  INS.  Co.  v.  SORTWELL  ET  ALS.,  8  Allen, 
217.  Insurance. 

WALES  ET  ALS.  v.  CHINA  MUTUAL  INS.  Co.,  8  Allen,  380.  Insur 
ance. 

THAYER  v.  WELLINGTON  ET  ALS.,  9  Allen,  283.     Will. 

CHASE  v.  ALLIANCE  INS.  Co.,  9  Allen,  311.     Ship. 

ATTORNEY-GENERAL  v.  RECTOR  AND  CHURCHWARDENS  OF  TRIN 
ITY  CHURCH  ET  ALS.,  9  Allen,  422.  Charitable  uses. 

BODMAN    ET    AL.  V.  AMERICAN    TRACT    SOCIETY    ET   ALS.,  9  Allen 

447.     Will. 

GARDNER  v.  BOSTON  WATER  POWER  Co.  ET  AL.,  9  Allen,  466. 
Contract. 

UNION  RAILWAY  Co.  v.  MAYOR,  &c.  OF  CAMBRIDGE  ET  AL.,  11 
Allen,  287.  Railroad. 

ELY  ET  AL.  v.  Me  KAY  ET  ALS.,  12  Allen,  323.  Specific  perform 
ance. 

WALLACE  v.  BEEBE  ET  ALS.,  12  Allen,  354.     Contract. 

PENNIMAN  ET  AL.  v.  SANDERSON  ET  ALS.,  13  Allen,  193.    Trustees. 

DABNEY  v.  NEW  ENGLAND  MUTUAL  MARINE  INS.  Co.,  14  Allen, 
300.  Insurance. 

SMITH  v.  MUTUAL  LIFE  INS.  Co.  OF  NEW  YORK,  14  Allen,  336. 
Equity. 

ESSEX  Co.  v.  PACIFIC  MILLS,  14  Allen,  389.     Currency. 

BOSTON  GAS-LIGHT  Co.  v.  OLD  COLONY  AND  NEWPORT  RAIL 
WAY  Co.,  14  Allen,  444.  Railroad. 

RYDER  ET  AL.  v.  PHCENIX  INS.  Co.,  98  Mass.  185.  Marine  Insur 
ance. 

SHAW  v.  SPENCER  ET  ALS.,  100  Mass.  382.     Trust. 

PALMER,  ADMINISTRATOR,  v.  STEVENS,  100  Mass.  461.     Equity. 

OLIVER  v.  LIVERPOOL  AND  LONDON  LIFE  AND  FIRE  INS.  Co., 
100  Mass.  531.  Tax. 


CASES   ARGUED   FROM   1857   TO   1874.  477 

MASSACHUSETTS  GENERAL  HOSPITAL  v.  INHABITANTS  OF  SOMER- 

VILLE,  101  Mass.  319.     Tax. 

RYDER  ET  AL.  v.  PHCENIX  INS.  Co.,  101  Mass.  458.     Review. 
STOCKBRIDGE  IRON   Co.  v.   HUDSON  IRON   Co.,   102  Mass    45. 

Equity  pleading  and  practice. 
POLLOCK  v.  LEARNED,  102  Mass.  49.     Widow. 
COOMBS  v.  NEW  BEDFORD  CORDAGE  Co.,  102  Mass.  572.    Master 

and  servant. 

COMMONWEALTH  v.  EASTERN  R.  R.  Co.,  103  Mass.  254.    Railroad. 
KEENE  v.  EASTERN  R.  R.  Co.,  103  Mass.  259.     Same. 
THWING  v.  GREAT  WESTERN  INS.  Co.,  103  Mass.  401.     Marine 

insurance. 
BREWER  v.   BOSTON  THEATRE,    104   Mass.   378.      Corporation. 

Equity. 
PADDOCK  AND  FIELD  v.  COMMERCIAL  INS.  Co.,  104  Mass.  521. 

Marine  insurance. 

BACON  v.  POMEROY  ET  ALS.,  104  Mass.  577.     Partnership. 
ROTCH  v.  MORGAN,  105  Mass.  426.     Executor. 
ELLIS  v.  BOSTON,  HARTFORD,  AND  ERIE  R.  R.  Co.,  107  Mass.  1. 

Mortgage. 

EMERY  v.  PARROTT,  107  Mass.,  95.     Insane  person.     Equity. 
MERRIMACK  MANUFACTURING  Co.  v.   QUINTARD   ET  ALS.,    107 

Mass.  127.     Damages. 

CORY  v.  BOYLSTON  INS.  Co.,  107  Mass.  140.     Marine  insurance. 
STOCKBRIDGE  IRON  Co.  v.  HUDSON  IRON  Co.,  107  Mass.  290. 

Equity.     Deed. 

SOHIER  v.  TRINITY  CHURCH,  109  Mass.  1.     Trust. 
HOWARD  v.   GREAT  WESTERN  INSURANCE  Co.,  109  Mass.  384. 

Marine  insurance. 

FLORENCE  SEWING  MACHINE  Co.  v.  GROVER  AND  BAKER  SEW 
ING  MACHINE  Co.,  110  Mass.  1.     Injunction. 
WORCESTER  GAS  LIGHT  Co.  v.  CITY  or  WORCESTER,  111  Mass. 

353.     Contract. 
LOWELL  v.  BOSTON,  111   Mass.  454.     City.     Constitutionality  of 

a  certain  statute. 
COMMONWEALTH  v.  SHOE  AND  LEATHER  DEALERS'  INS.  Co.,  112 

Mass.  131.     Insurance. 


478  APPENDIX. 


CASES  AllGUED  BEFORE  THE  SUPREME  COURT  OF  THE 
UNITED   STATES,  FROM   1857  TO  1874. 

DEAN  v.  MASON  ET  AL.,  20  How.  198.     Patent  rights. 

LAWRENCE  v.  TUCKER,  23  How.  14.     Mortgage. 

THE  ISLAND  CITY,  1  Black.  121.     Salvage. 

THE  SHIP  MARCELLUS,  1  Black.  414.     Practice. 

THE  UNITED  STATES  v.  ANDRES  CASTILLERO,  2  Black.  17.  Land 
law. 

CALAIS  STEAMBOAT  Co.  v.  VAN  PELT'S  ADMINISTRATOR,  2  Black. 
372.  Principal  and  agent. 

PARKER  v.  WINNIPISEOGEE  LAKE  COTTON  AND  WOOLLEN  COM 
PANY,  2  Black.  545.  Chancery. 

CROSS  v.  DE  VALLE,  1  Wallace,  1.  Alien.  Devise.  Equity. 
Pleading. 

TURRILL  v.  THE  MICHIGAN  SOUTHERN  ETC.  R.  R.  Co.,  1  Wall. 
491.  Patent. 

HAWTHORNE  v.  CALEF,  2  Wall.  10.     Constitutional  law. 

LOWBER  v.  BANGS,  2  Wall.  728.     Charter-party. 

THE  KIMBALL,  3  Wall.  37.     Lien. 

STANLEY  v.  COLT,  5  Wall.  119.     Legislative  power. 

MAURAN  v.  INSURANCE  COMPANY,  6  Wall.  1.     Insurance. 

THE  AMELIE,  6  Wall.  18.     Commercial  law.     Lien. 

RUBBER  COMPANY  v.  GOODYEAR,  6  Wall.  153.     Practice. 

LORINGS  v.  MARSH,  G  Wall.  337.     Will. 

UNITED  STATES  v.  ADAMS,  7  Wall.  4G3.  Heads  of  departments. 
Government  contracts. 

AGAWAM  COMPANY  v.  JORDAN.  7  Wall.  583.     Patent.     Evidence. 

THE  FLOYD  ACCEPTANCES,  7  Wall.  666.     Bills  of  exchange. 

EURMAN  v.  NICHOL,  8  Wall.  44.  Jurisdiction.  Constitutional 
law.  Bank. 

PAUL  v.  VIRGINIA,  8  Wall.  168.     Constitutional  laws. 

MOREY  v.  LOCKWOOD,  8  Wall.  230.     Patent. 

HOME  OF  THE  FRIENDLESS  v.  ROUSE,  8  Wall.  430.  Constitu 
tional  law. 

THE  WASHINGTON  UNIVERSITY  v.  ROUSE,  8  Wall.  439.  Con 
stitutional  law. 

WILLARD  v.  TAYLOE,  8  Wall.  557.     Equity. 

THE  POTOMAC,  8  Wall.  590.     Admiralty.     Collision. 


CASES   ARGUED   FROM   1857   TO    1874.  479 

HEPBURN  v.  GRISWOLD,  8  Wall.  603.     Legal  tender. 

MAGUIRE  v.  TYLER,  8  Wall.  650.     Public  lands. 

THE  HARRIMAN,  9  Wall.  161.     Charter-party. 

UNITED  STATES  v.  ADAMS,  9  Wall.  554.    Court  of  Claims.    Practice. 

WALKER  v.  WALKER'S  EXECUTOR,  9  Wall.  743.  Trustee.  Hus 
band  and  wife. 

STIMPSON  v.  WOODMAN,  10  Wall.  117.     Patent. 

MARBLE  COMPANY  r.  RIPLEY,  10  Wall.  339.  Equity.  Entry  for 
condition  broken.  Corporeal  interest. 

LIVERPOOL  INS.  Co.  v.  MASSACHUSETTS,  10  Wall.  566.  Consti 
tutional  law.  Corporations. 

MERCHANT'S  BANK  v.  STATE  BANK,  10  Wall.  604.  National 
banks.  Principal  and  agent. 

VIRGINIA  v.  WEST  VIRGINIA,  11  Wall.  39.  Constitutional  law. 
Jurisdiction. 

GARNETT  v.  UNITED  STATES,  11  Wall.  256.     Jurisdiction. 

MCVEIGH  v.  UNITED  STATES,  11  Wall.  259.     Confiscation  acts. 

GALVESTON  RAILROAD  v.  COWDREY,  11  Wall.  459.     Mortgage. 

Mo  WRY  v.  WHITNEY,  14  Wall.  620.     Patent. 

MADDOX  v.  UNITED  STATES,  15  Wall.  58.  The  Rebellion.  Pur 
chasing  agents. 

THE  NITKO-GLYCERINE  CASE,  15  Wall.  524.     Common  carriers. 

DAVIS  v.  GRAY,  16  Wall.  203.  Condition.  Practice.  Conflict 
of  jurisdiction. 

OSBORNE  v.  MOBILE,  16  Wall.  479.     Constitutional  law. 

WILLIAMS  v.  BAKER,  17  Wall.  144.     Des  Moines  river  grants. 

HOLDEN  v.  JAY,  17  Wall.  211.    Breach  of  condition.    Indian  tribes. 

STATE  v.  STOLL,  17  Wall.  425.     Construction. 

CARLTON  v.  BOKEE,  17  Wall.  463.     Patent. 

UNITED  STATES  v.  Buzzo,  18  Wall.  125.  Internal  revenue. 
Practice. 

TRASK  v.  MAGUIRE,  18  Wall.  391.     Taxation. 

CASE  OF  THE  SEWING  MACHINE  COMPANIES,  18  Wall.  553.  Juris 
diction. 

BULLARD  v.  BANK,  18  Wall.  589.     Lien.     Bank  stock. 

THE  DOLLAR  SAVINGS  BANK  v.  UNITED  STATES,  19  Wall.  227. 
Internal  revenue. 


INDEX   TO  VOLUME   1. 


ABBOT,  JOSEPH,  third  master  of  Water- 
town  Academy,  13. 

Abbot,  J.  G.,  33*5. 

Abolitionists    See  Antislavery  Society. 

Adams,  Samuel,  131. 

Address  to  the  People  of  Mass.,  on  the 
Coalition,  138  et  seq. ;  in  1860,  329  et 
seq. 

Admiralty,  process  in,  does  not  extend 
to  land,  275  et  seq. 

Admiralty  Practice,  regulation  of,  276. 

Aiken,  David,  335. 

Aiken,  John,  335. 

Alabama,  validity  of  its  domestic  legis 
lation  during  the  civil  war,  371  et  seq. 

Alien  Enemy,  the  Southern  Confederacy 
was  not  an,  360-366. 

Allegiance.     See  Citizenship. 

Allen,  Jonathan,  father  of  Mrs.  M.  Malle- 
ville  Curtis,  350,  note. 

Allen,  Miss  M.  M.  See  Curtis,  Mrs.  M. 
M. 

Allen,  Mrs.  Maria  Malleville,  aunt  of 
Mrs.  M.  Malleville  Curtis,  350,  note. 

Allen,  Rev.  Thomas,  first  minister  of 
Pittsfield,  350,  note. 

Allen,  Kev.  William,  President  of  Bow- 
doin  College,  350,  note. 

Alvord,  James  C.,  intimate  friend  of 
Judge  Curtis,  47,  57;  death  and  char 
acter  of,  90-'J4. 

Alvord,  Mrs.  James  C..  91,  note. 

Amendment  of  the  Constitution,  XIII., 
proposed  and  declared  to  have  been 
ratified,  387,  388;  XIV.,  proposed  and 
declared  to  have  been  ratified,  388,  396  ; 
XV.,  proposed  and  declared  to  have 
been  ratified,  398. 

Angier,  John,  his  school  at  Medford,  14. 

Antislaverv  Societv,  excitement  pro 
duced  by,  in  1835,  72 

Appleton,  John,  teacher  of  Judge  Cur 
tis,  13.  note. 

Appleton,  Wm.  H.,  Representative  in 
Congress,  164,  167. 


Appointing  Power.  See  Office,  Re 
moval,  &c. 

Arbitrary  Arrests.    See  Habeas  Corpus. 

Ashmun,  John  Hooker,  Itovall  Professor 
of  Law,  42. 

Attorney-General.  See  Black,  and 
Stanbery. 

Augusta  (in  Maine),  City  of.  See  Mu 
nicipal  Corporation. 

BACON.  LORD,  Works   of,   studied   by 

Judge  Curtis,  40. 
Badger,  George  N.,  241. 
Bancroft,  George,  appointed  Collector  of 

the  Port  of  Boston,  81. 
Bank,  Commonwealth,  failure  of,  79. 
Bank  Paper,  illegal  in  Missouri,  of  less 

denomination  than  $5,  277. 
Banks.     See  Specie  Pavments. 
Banks,  failure  of,  81. 
Banks,  National,  restrictions  on,  in  mak 
ing  loans,  318  et  seq. 
Barristers,     Eng  ish,     compared     with 

American  lawyers,  96. 
Bartlett.  Homer^  335. 
Bartlett,    Sidney,   321,    335;   on   Judge 

Curtis's  ''Executive  Power,"  358. 
Bates,  Wm.  G.,  335. 
Baylies,  William,  335. 
Beebe,  James  M.,  335. 
Beer,  regulations  of  sale  of.     See  Vested 

Rights. 

Benjamin,  J.  P.,  179,  180  and  note. 
Bible,  the,  a  book  for  lawyers,  326. 
Bigelow,  Geo.  Tyler,  classmate  of  Judge 

Curtis,  Chief  justice  of  Mass.,  11,  note  ; 

his  excellent  judicial  style,  34,  note. 
Bill   of   Exchange,  general  promise   to 

accept,  289. 
Billings,  Elixabeth.     See  Ticknor,  Mrs. 

Elizabeth. 

Binnev,  Horace,  8,  note. 
Bishop,  Henry  W.,  335. 
Black,  Jeremiah  H.,  Attorney-General 

official  letter  from,  250. 


31 


482 


INDEX   TO   VOLUME   I. 


Blair,  Montgomery,  counsel  in  the 
Dred  Scott  case,  240. 

Bonds.     See  Coupons. 

Border  States,  efforts  to  retain  them  in 
the  Union,  330. 

Boutwell,  George  S.,  his  first  election  as 
Governor  of  Mass.,  138  et  seq. 

Bowdoin  Prizes  at  Harvard,  gained  bv 
J  udge  Curtis,  38,  44. 

Brown,  Mrs.  Elizabeth  Ticknor  (nee 
Curtis),  445. 

Browne,  Causten,  remarks  of,  concern 
ing  Judge  Curtis,  109-171;  letter  of, 
to  Judge  Curtis,  408. 

Browning,  O.  H.,  presides  at  a  conven 
tion  in  Philadelphia,  390. 

Buchanan,  James,  President,  230;  his 
administration,  192, 193;  official  letter 
to,  249. 

Burke,  Edmund,  his  skill  in  farming, 
184. 

Burnley,  Albert  S.,  (of  Kentucky,)  108. 

Burns,  Anthony,  case  of,  173. 

Burton,  Warren,  first  master  of  the  Wa- 
tertown  Academy,  12. 

CABLES.     Sea  Telegraphic  Cables. 

Canada,  disturbances  in,  in  1838,  80. 

Campbell,  Judge,  179;  on  Judge  Curtis's 
resignation,  250. 

Campbell,  St.  George  Tucker,  on  Judge 
Curtis's  resignation,  202. 

Caroline,  the  steamer,  destruction  of,  80. 

Carroll,  Wm.  Thomas,  Clerk  of  the  Su 
preme  Court  of  U.  S.,  212,  213,  210. 

Catron,  Judge,  104;  on  Judge  Curtis's 
resignation,  255. 

Cavuga  Indians,  annuity  of.  pledged  bv 
the  State  of  N.  Y.,  281  et  seq. 

Channing,  Edward  T.,  Professor  of  Rhet 
oric,  merits  of,  as  a  teacher,  33,  note. 

Charter,  forfeiture  of,  in  Missouri,  278 
et  seq. ;  in  New  York,  279 ;  in  Eng 
land,  ib.  See  Corporation. 

Charters  of  Corporations.  See  Consti 
tutional  Law. 

Chase,  Chief  Justice,  declines  to  act  as 
an  arbitrator,  311. 

Cherokee  Nation.     See  Indians. 

Child,  Linus,  335. 

Child,  Mrs.  Lydia  Maria,  her  first  novel, 
14,  note. 

Choate,  Ruf us,  consulted  on  the  appoint 
ment  of  Mr.  Curtis  as  Judge,  154, 155, 
150. 

Cicero,  his  view  of  the  objects  of  life, 
452/453. 

Citizens,  privileges  and  immunities  of, 
in  the  several  "States,  294  et  seq.,  301. 

Citizenship.     See  Dred  Scott  Case. 

Citizenship,  native,  not  renounced  by  a 
temporary  allegiance,  438  et  seq. 

Civil  War,' beginning  of,  347;  distin 
guished  from  foreign  war,  3GO-3GG. 


Clapp,  Henry  W.,  335. 

Clarke,  Samuel  C.  and  Sarah,  descend 
ants  of  William  Curtis  of  Roxbury 
5,  note. 

"  Class  of  1829."  disturbances  in  Fresh 
man  year,  28 ;  its  record  in  regard  to 
Judge  Curtis,  354,  note. 

Class  Orator.     Ste  Devereux. 

Clay,  Henry,  position  of,  in  regard  to 
slavery,  80. 

Clifford,"John  H.,  Attorney-General  of 
Mass.,  321,  335,  345. 

Clifford,  Judge,  his  notice  of  the  death 
of  Judge  Curtis,  451. 

Club,  The  "  Friday  Evening,"  in  Bos 
ton,  421  and  n<  te. 

Coalition,  in  Mass.,  between  two  parties, 
130  et  seq. 

College  Societies,  Judge  Curtis  a  mem 
ber  of.  34  and  note. 

Collier,  Sir  Robert  Pollett,  441,  note. 

Comity,  as  between  the  States  of  the 
Union,  87  et  seq. 

Commander-in-Chief.  See  Lincoln, 
Abraham. 

"Commerce,"  includes  Fire  and  Marine 
Insurance,  290  et  seq. ;  regulation  of, 
between  the  States,  and  with  foreign 
countries,  297  et  seq.;  what  inter-state 
is,  299  ;  telegraphic  intercourse  is,  310. 

Commercial  power,  extent  and  limits  of, 
312  et  seq. 

Commissioners  of  Knox  Co.  v.  Aspin- 
wall,  case  of,  explained,  285. 

Common  Law,  objections  to  codification 
of,  74.  75;  adaptation  of  its  rules  to 
existing  state  of  society,  2:)2. 

Commonwealth  v.  Aves.     See  Med. 

Compromise  measures  of  1850,  112  et 
seq. 

Conant,  Edwin,  classmate  of  Judge 
Curtis,  40. 

Condition,  public  grants  made  upon, 
278  et  seq. 

Confederation,  Articles  of.    See  Citizens. 

Conflict  of  Laws.     See  Slavery. 

Congregationalism.     See  Unftarianism. 

Conrad.  Secretary  of  War,  107. 

Constitution  of  Missouri  construed,  277 
et  seq. 

Constitution  of  U.  S.,  binding  force  of, 
122;  construction  of,  by  the  Judici 
ary,  401;  character  of,  404. 

Constitutional  Law,  opinions  given  on 
topics  of,  209;  Foreign  Insurance 
Companies,  293  et  seq.;  freedom  of 
trade,  297  et  seq.;  ex  post  facto  legis 
lation,  304  et  seq. ;  obligation  of  con 
tracts,  308  et  seq.,  375  et  seq. 

Contracts,  illegal,  318  et  seq. 

Convention  held  at  Philadelphia  in  1800, 
letter  to,  389,  390  et  seq. 

Convention  of  Mass.,  to  ratify  Constitu 
tion  of  U.  S.,  131. 


INDEX   TO   VOLUME   I. 


483 


Convicts,  foreign,  forbidden  to  land  in 
Mass.,  130. 

Corporation,  breach  of  condition  in  its 
charter,  279. 

Coupons  for  payment  of  interest,  284  et 
seq. 

Crittenden,  John  J.,  Senator  from  Ken 
tucky,  167  ;  liking  for  Judge  Curtis, 
ib.,  241 ;  his  proposed  compromise, 
336  et  seq. 

Crocker,  Samuel  L.,  335. 

Crown  of  Great  Britain,  petition  to,  284. 

Crow's-feet,  badge  on  the  coat-sleeve  of 
Harvard  students,  23,  note. 

Currency,  state  of,  in  1838,  81.  See 
Bank  Paper. 

Curtis,  Mrs.  Anna  Wroe  (Scollay),  ill 
ness  and  death  of,  107-109. 

Curtis,  Mrs.  Anna  W.,  second  wife  of 
Judge  Curtis,  108,  note;  death  of,  265, 
note. 

Curtis  Arms,  2,  note. 

Curtis,  Benjamin  Robbins,  birth  of,  5 ; 
early  reading  of,  7-10;  schools  at 
tended  by,  11  et  seq. ;  early  religious 
impressions,  18-21 ;  boyish'traits  and 
pursuits,  21-22;  going  to  Harvard, 
23;  first  written  production,  24;  en 
ters  Harvard,  26-28 ;  anecdote  of  his 
Freshman  year,  28,  29;  his  steady 
progress,  30  et  seq. ;  acquisitions,  ib. ; 
College  friendships,  36,  37 ;  early  se- 
dateness  of  manner,  36,  37;  univer 
sally  called  "  Ben,"  37,  note  ;  gains  a 
Bowdoin  prize,  38;  graduates  second 
scholar,  39;  oration  at  Commence 
ment  not  delivered,  39,  40;  appointed 
Proctor,  40 ;  enters  the  Law  School, 
41;  steady  progress,  42,  43;  argues 
in  moot  courts,  43 ;  gains  another 
Bowdoin  prize,  44;  letter  to  G.  W. 
Phillips  from  Hanover,  45;  leaves  the 
Law  School  for  the  country,  46  ;  rea 
sons  for  the  change,  46-49,  51;  letters 
to  G.  W.  Phillips,  51-55;  engaged  to 
be  married,  53;  professional  prospects 
at  Northfield,  54;  rejoins  the  Law 
School,  56;  admitted  as  an  attorney 
of  the  common  pleas,  58 ;  marriage, 
ib. ;  trial  of  a  shingle  case,  60  ;  famil 
iarity  with  special  pleading,  61;  ad 
vantages  of  residence  in  Northfield, 
62  ;  looks  for  a  wider  field,  63 ;  plan 
of  a  city  and  country  partnership  with 
J.  C.  Alvord,  64;  invited  to  join  Mr. 
C.  P.  Curtis,  66;  admitted  as  an  at 
torney  of  Supreme  Court  of  Mass., 
69 ;  removes  to  Boston,  70,  71 ;  new 
arrangements  with  Mr.  C.  P.  Curtis, 
77 ;  practice  in  Boston  from  1834  to 
1851,  82  et  seq. ;  character  as  an  ad 
vocate,  ib. ;  argues  the  case  of  the 
slave  Med,  85 ;  anecdote  of,  when 
opposed  to  Mr.  Wel)ster,  89;  com 


pared  to  Sir  Wm.  Follet,  96  ;  rule  of 
life  in  regard  to  public  affairs,  97-99 ; 
writes  on  the  Repudiation  of  State 
Debts,  99  et  seq. ;  made  a  member  of 
the  Corporation  of  Harvard  College, 
106,  109 ;  letters  to  Mr.  Ticknor,  107, 
109,  110,  111;  second  marriage,  108; 
welcomes  Mr.  Webster  in  a  public 
address,  112-116;  opinions  on  the  ex 
tradition  of  fugitive  slaves,  121-136  ; 
speech  of,  on  the  duty  of  obeying  the 
Constitution,  123  et  seq. ;  becomes  a 
member  of  the  legislature,  137;  de 
nounces  the  Coalition  of  1851,  in  an 
Address  to  the  People,  138  et  seq. ; 
his  reticence  on  ordinary  subjects  of 
party  contest,  150  et  seq. ;  appointed  a 
Justice  of  Supreme  Court  of  U.  S., 
153  et  seq. ;  nominated  to  and  con 
firmed  by  the  Senate,  156,  note;  his 
letter  to  President  Fillmore,  on  re 
ceiving  his  commission,  156;  takes 
the  oath  of  office  as  Judge,  157;  let 
ter  to  Mr.  Webster  on  the  judicial 
duties,  ib. ;  how  his  character  was 
tried  on  his  accession  to  the  bench, 
158  et  seq. ;  his  judicial  impartiality, 
162;  rules  that  the  jury  must  take  the 
law  from  the  court,  161,  162;  takes 
his  seat  on  the  bench  of  the  Supreme 
Court,  163 ;  welcomed  by  his  breth 
ren,  ib. ;  letters  to  Mr.  Ticknor, 
163 ;  his  college  days,  166 ;  appear 
ance  and  manners  at  the  age  of  forty- 
two,  167;  readiness  to  give  others 
their  due,  ib.;  opinions  written  by. 
in  the  Supreme  Court,  169;  his  de 
meanor  as  a  circuit  judge,  160-171; 
letters  to  Mr.  Ticknor,  172;  charge 
of,  to  the  Grand  Jury,  174;  advises 
on  books  for  the  Public  Library,  179, 
180  ;  his  opinion  of  the  French  com 
mercial  jurists,  179 ;  purchases  an  es 
tate  at  Pittsfield,  182,  183;  anecdote 
of,  184;  letters  to  Mr.  Ticknor,  185, 
187,  190;  projects  and  executes  his 
edition  of  Supreme  Court  Decisions, 
388-191;  last  attendance  as  a  mem 
ber  of  the  Supreme  Court,  192  et  seq. ; 
foreshadows  the  sectional  conflict, 
192-194  ;  coi'respondence  with  Chief 
Justice  Taney,  212  et  seq.;  remarks 
on  the  character  of  Judge  Taney,  230, 
231  and  note ;  resignation  from  the 
bench,  243  et  seq. ;  returns  to  the  bar, 
264;  national  reputation,  264  et  seq.; 
opinions  sought  for,  265  et  seq. ;  pro 
fessional  income  from  1857-1874,  267, 
268 ;  opposes  usurpation,  347  et  seq. , 
supports  the  President's  just  powers, 
347  et  seq.;  speech  in  Faneuil  Hall, 
on  the  Crittenden  Compromise,  337  et 
seq. ;  efforts  to  produce  a  conciliatory 
spirit  in  Mass.,  327  et  seq.;  change 


484 


INDEX  TO   VOLUME   I. 


of  religious  sentiments,  322  et  seq. ; 
religious  character,  324  et  seq. ;  his 
course  in  regard  to  the  Civil  War,  346 
et  seq.;  publishes  his  pamphlet  on 
Executive  Power,  350  et  seq.;  his 
motives  for  that  publication,  350-353 ; 
his  feelings  about  the  war,  in  1862, 
353 ;  his  distrust  of  Mr.  Stanton,  353, 
354 ;  appointed  umpire  under  a  treaty, 
367-369;  death  of  his  mother,  370; 
opinions  given  at  the  bar,  371  et  seq. ; 
his  letter  to  the  Philadelphia  Conven 
tion  of  1866,  389,  390;  requested  to 
defend  President  Johnson  on  the  im 
peachment  trial,  407,  408;  repairs  to 
Washington,  408  et  seq. ;  opening  ar 
gument  on  the  trial,  410  et  seq.;  de 
scription  of  his  manner  and  bearing, 
413-415 ;  letters  to  Mr.  Ticknor  dur 
ing  the  trial,  415,  416;  effect  of  his 
argument,  416,  417  and  note ;  declines 
office  of  Attorney-General,  418,  419; 
constant  professional  labors  from  1869 
to  1874,  420;  last  five  years  of  his 
life,  420  et  seq. ;  loses  two  young 
children,  441 ;  goes  abroad  for  a  few 
months,  441  et  seq.;  returns  home, 
443  ;  declines  an  appointment  as  coun 
sel  for  the  U.  S.  at  Geneva,  ib.;  de 
livers  lectures  at  Harvard  Law  School, 
443 ;  his  feelings  in  regard  to  the  office 
of  Chief  Justice  of  the  U.  S.,  444; 
death  of  his  eldest  daughter,  445 ;  de 
pression  caused  by  domestic  sorrows, 
445,  446 ;  argument  in  the  Union  Pa 
cific  case,  446;  last  argument  in  the 
Supreme  Court  of  the  U.  S.,  446,  note ; 
goes  to  Newport  in  June,  1874,  446; 
failing  health,  last  illness,  and  death, 
446  et  seq.;  character  of,  449  et  seq. 

Curtis,  Benjamin  (2d),  grandfather  of 
Judge  Curtis,  4. 

Curtis,  Benjamin  (3d),  father  of  Judge 
Curtis,  5. 

Curtis,  Catharine  P.,  her  account  of  the 
family,  5,  note. 

Curtis,  Charles  Pelham,  character  and 
professional  standing,  67  ;  pedigree  of, 
67,  note;  partnership  with  B.  K.  Cur 
tis,  68 ;  new  arrangements  with,  77, 
214,  215,  217,  218. 

Curtis,  Connecticut  family  of,  2,  note, 
422;  general  traits  of  the  descendants 
of  William,  of  Koxbury,  ib. 

Curtis,  Eliza.     See  Woodward. 

Curtis,  Mrs.  Eliza  Maria,  first  wife  of 
Judge  Curtis,  48,  58;  death  of,  103- 
105. 

Curtis,  Mrs.  Elizabeth,  grandmother  of 
Judge  Curtis,  4  and  note.  See  Tick 
nor. 

Curtis,  Elizabeth  Ticknor.  See  Brown, 
Mrs.  E.  T. 

Curtis,  family  name  of,  1-3. 


Curtis  families  in  England,  3,  note. 

Curtis,  George  Ticknor,  birth  of,  5 ;  let 
ter  of,  to  Judge  Curtis,  on  his  proposed 
resignation,  245,  246. 

Curtis  House,  in  Koxbury,  2,  5,  note. 

Curtis,  Isaac,  2. 

Curtis,  Mrs.  Lois,  mother  of  Judge  Cur 
tis,  5,  6 ;  early  widowhood  of,  6,  7 ; 
opens  a  circulating  library,  7 ;  keeps 
a  shop,  10 ;  her  self-devotion,  14-17 ; 
her  tenderness  in  old  age,  17,  note ; 
her  religious  character,  21 ;  residence 
of,  in  Cambridge,  49  ;  relieved  of  the 
cares  of  housekeeping,  78;  death  of, 
369,  370. 

Curtis,  Mrs.  Maria  Malleville  (nee 
Allen),  marriage  of,  350,  note. 

Curtis,  Mrs.  Mary  Oliver  (nee  Story), 
109,  110. 

Curtis,  Philip,  married  Amy  Washing 
ton,  2,  note. 

Curtis,  Rev.  Philip,  minister  of  Sharon, 
4  and  note. 

Curtis,  Sarah,  wife  of  William,  of  Rox- 
bury,  1. 

Curtis,  Thomas  B.,  72,  75. 

Curtis,  Walter,  son  of  Judge  Curtis,  187, 
190;  ill  health  in  college,  248;  notice 
of,  457. 

Curtis,  William,  of  Roxbury,  progenitor 
of  the  Curtis  family  in  Massachusetts, 
1-4. 

Curtis,  William  E.,  Judge  of  N.  Y.  Su 
perior  Court,  4,  note;  letter  to,  421. 

DANA,    RICHARD    H.,    Jr.,    commends 

Judge  Curtis's  judicial  fairness,  162. 
Daniel,  Judge,   afflicting  death  of  his 

wife,  193. 
Davis,  Isaac,  335. 
Decisions  of  the  Supreme  Court  of  U.  S., 

188  et  seq. 

Dedication.     See  Public  Property. 
Deerfield,  address  at,  on  Washington's 

birthday,  55. 
Deming,  Charles,  early  friend  of  Judge 

Curtis,  53  ;  death  of,  68. 
Denison,  Rt.   Hon.  John  Evelyn,  441, 

442. 

Devereux,  Geo.  H.,  class  orator,  35,  note. 
Dexter,  Mrs.  Win.  S.,  marriage  of,  180, 

246. 
Dickerson,    Edw.    N.,    210,    note;    on 

Judge  Curtis's  resignation,  257. 
Dickinson,  Edward,  335. 
Dodge,  John  C.,  321. 
Dred    Scott  Case,    history   and   conse 
quences  of,  192;    dissenting   opinion 

in,  204. 

ELDON,  LORD,  85,  note. 

Eliot,  John, '' Apostle  to  the  Indians," 

brother  of  Mrs.  Sarah  Curtis,  1. 
Eliot,  T.  D.,321. 


INDEX  TO   VOLUME  I. 


485 


Eminent  Domain,  exercise  of  the  power 

of,  3J.5. 
Emmanuel  Parish,  in  Boston,  organized, 

323. 
Episcopal  Church,  feeble  condition  of,  in 

New  England,  18 ;    confirmation   in, 

323. 
Evarts,  Wm.  M.,  retained  as  one  of  the 

counsel  for  President  Johnson,   409, 

note. 
Evelyn,  John,  ancestor  of  Lord  Ossing- 

ton,  441,  note. 
Everett,    Edward,   Governor  of  Mass., 

75 ;  inauguration  as  President  of  Har 
vard,  110. 
Evil,  Origin  of,  a  boy's  essay  on  the,  24 

et  seq. 
Ex  Post  Facto  Legislation,  what  is,  304 

et  seq. 

Executions.     See  Admiralty. 
Executive  Power,  Judge  Curtis's  pam 
phlet  on,  350  et  seq. 
Executors,  when  accountable  or  not,  in 

the  Federal  courts,  371  et  seq.     See 

Trustees. 
Extremists,    Northern    and    Southern, 

158-160. 

FAME,  the  love  of,  452  et  seq. 

Faneuil  Hall,  peculiarities  of  its  audi 
ences,  123 ;  meeting  at,  in  1850,  ib. 

Farm  School  in  Mass.,  108. 

Fearing,  Albert,  335. 

Field,  David  Dudley,  his  argument 
against  the  "Test  Oath,"  371,  note. 

Fillmore,  Millard,  President,  his  public 
character,  153  ;  his  early  preference 
for  Mr.  Curtis  as  Judge,  166 ;  letters 
of,  to  Mr.  Webster,  154,  155;  letter 
to,  as  ex-President,  250;  his  reply, 
251. 

Fines  and  Forfeitures.  See  Pardoning 
Power. 

Fish,  Hamilton,  167. 

Florida,  escape  of  slaves  into,  in  1789, 
135. 

Follet,  Sir  William,  compared  with  B. 
K.  Curtis,  96. 

Foreign  Corporations  may  be  excluded 
from  doing  business  in  a  State,  294. 

Foreign  Sovereign,  right  of,  to  act  as 
trustee  for  claims  of  his  subjects  on  a 
State  of  this  Union,  283,  284. 

"Foreign  State,"  meaning  of,  in  the 
Constitution  of  U.  S.,  281  et  seq. 

Foreign  Trading  Companies,  rights  of, 
in  States  where  not  created,  293  et 
^  seq. 

Forfeitures,  different  kinds  of,  278  et 
seq. 

Francis,  Rev.  Convers,  minister  of  Wa- 
tertown,  instructs  Judge  Curtis,  14, 
15. 

Francis,  Lydia  Maria.     See  Child. 


Franchises.  See  Vested  Rights,  Obliga 
tion  of  Contracts. 

Free  Soil  Party  forms  a  coalition  with 
the  Democrats,  137  et  seq. ;  origin  of, 
in  Mass.,  113. 

Freedom  of  Speech,  constitutional  guar 
anty  of,  412  et  seq. 

French  Spoliation  Bill,  passage  of,  176. 

Fugitive  servants,  Colonial  agreement, 
in  1643,  for  surrender  of,  134. 

Fugitive  Slave  Law,  amendment  of,  pro 
posed,  345. 

Fugitive  Slaves,  extradition  of,  113, 119, 
120,  122-136;  trials,  173,  174. 

GAINES,  MRS.,  her  celebrated  litigation, 
168. 

Gardner,  Henry  J.,  335. 

General  Average,  case  of,  271  et  seq. 

Gerrish,  Miss,  schoolmistress,  11,  note. 

Gilchrist,  John  James,  school-fellow  of 
Judge  Curtis,  27,  note. 

Goodrich,  Charles  B.,  335. 

Government,  de  facto,  and  de  jure, 
372. 

Governor  of  Mass.,  limited  power  of  re 
moval,  269  et  seq. 

Governor  of  Missouri,  pardoning  power 
of,  277  et  seq. 

Grant,  Ulysses  S.,  President,  421. 

Grants,  legislative.  See  Obligation  of 
Contracts. 

Gray,  Dr.,  of  Utica,  447. 

Greeley,  Horace.     See  Tribune. 

Greenough,  William  W.,  187. 

Greenwood,  Rev.  Dr.,  minister  of  King's 
Chapel,  322. 

Grier,  Judge,  his  fondness  for  Judge 
Curtis,  163;  course  of,  in  Dred  Scott 
case,  209,  note. 

Grinnell,  Joseph,  335. 

Groesbeck,  retained  as  one  of  the  coun 
sel  for  President  Johnson,  409,  note. 

Grotius,  129. 

Guaranty,  when  not  addressed  to  any 
particular  person,  289. 

Guardians.     See  Trustees. 

HABEAS  CORPUS,  vindication  of,  by 
Chief  Justice  Taney,  240  ;  suspension 
of,  by  an  Executive  proclamation,  349 
et  seq. 

Hale,  John  P.,  his  views  respecting  the 
rights  of  juries  to  judge  the  law,  161, 
162 ;  lecture  by,  174. 

Hamburg,  free  town  of,  temporary  alle 
giance  to,  438. 

Hancock,  Charles  L.,  classmate  of  Judge 
Curtis,  70,  note. 

Hardwicke,  Lord,  clerk  to  an  attorney, 
41,  note. 

Harvard  College,  obsolete  customs  at, 
23.  note;  hostility  to,  in  Western 
Mass  ,  49,  50 ;  Corporation  of,  106. 


486 


INDEX  TO   VOLUME   I. 


Havard,  Charles,  grantee  of  a  cable 
right,  311. 

Hawkers  and  Pedlers.     See  Commerce. 

Head,  Sir  Edmund,  Governor-General  of 
Canada,  187,  188 ;  on  Judge  Curtis's 
"Executive  Power,"  360,  note;  sug 
gests  the  appointment  of  Judge  Curtis 
as  umpire  under  a  treaty,  368,  369, 
and  note. 

Hedge,  Isaac  L.,  335. 

Hill,  Clement  Hugh,  letter  of,  to  the 
editor,  23-i. 

Hill,  Isaac,  Governor  of  New  Hamp 
shire,  80. 

Hillard,  George  S.,  graduates  from  Har 
vard,  27,  note;  anecdote  of,  at  the 
Law  School,  45,  note,  321. 

Hobomok,  Mrs.  L.  M.  Child's  first  work, 
14,  note. 

Holmes,  Oliver  Wendell,  classmate  of 
Judge  Curtis,  34 ;  his  account  of  him, 
ib. ;  his  Phi  Beta  Kappa  poem,  35, 
note. 

Hubbard,  Samuel,  79. 

Hudson's  Bay  Company.  See  Treaty  of 
Oregon. 

Huntington,  F.  D.,  Bishop,  formerly  a 
Unitarian  clergyman,  322  et  seq.; 
letter  of,  to  the  author,  323. 

ILLINOIS,  two  per  cent  claim,  423  et  seq. ; 

condemnation  of  lands  in,  for  use  of 

certain  railroads,  430  et  seq. 
Impeachment.     See  Johnson,  Andrew. 
Indian  Wars,  73. 
Indians,  position  of,  in  the  U.  S.,  281 

et  seq.;    in    the    British   dominions, 

283. 
Insurance,   business    of,   is    commerce, 

296. 
Insurance    Companies.       See    Foreign 

Trading  Companies. 

Insurance,  Marine.  See  General  Aver 
age.  Fire,  valuation  of  thing  insured, 

274,  275. 

Inspection  Laws,  what  are  not,  302. 
Intercourse  is  commerce,  297. 

JACKSON,  DR.  JAMES,  335;  on  Judge 
Curtis's  "Executive  Power,"  356, 
357. 

Johnson,  Alexander  S.,  Judge,  com 
missioner  under  treaty  for  settlement 
of  claims,  367,  368. 

Johnson,  Andrew,  President,  accession 
of,  383;  his  plan  for  restoring  the 
seceded  States  to  the  Union,  383  et 
seq. ;  his  proclamation  of  amnesty 
and  pardon,  ib. ;  proclamation  for  ap 
pointment  of  Provisional  Governors, 
384;  conflict  with  Congress,  388  et 
seq. ;  vetoes  the  Reconstruction  Acts, 
397  et  seq.;  opposed  by  the  majority 
of  Congress,  401  et  seq. ;  continues 


Mr.  Lincoln's  Cabinet  in  office,  402; 
impeachment  of,  406  et  seq. ;  trial  of. 
407  et  seq. ;  his  bearing  at  the  time  of 
the  impeachment,  410 :  character  of, 
described  by  Judge  Curtis,  415-417; 
acquittal  of,  417. 

Johnson,  Reverdy,  on  Judge  Curtis's 
resignation,  260-262;  letter  of,  to  a 
meeting  in  Baltimore,  237,  238 ;  his 
argument  against  the  "Test  Oath." 
370 ;  letter  to,  concerning  the  office  of 
Chief  Justice,  444. 

Jurv  Trial,  test  of  a  judge's  capacitv, 
157. 

Jus  Publicum,  the,  defined,  314. 

KENDALL,  MR.,  second  master  of  Water-' 
town  Academy,  13. 

Kent,  Chancellor,  69,  note. 

Kent,  Governor  of  Maine,  89. 

Kent,  William,  becomes  Dane  Professor 
at  Cambridge  Law  School,  107,  110, 
111 ;  resignation  of,  107,  note. 

King's  Chapel,  liturgy  used  at,  322. 

LAND  OFFICE.  See  Illinois,  Missis 
sippi. 

Lapse  of  time,  when  a  bar  in  equitv, 
437. 

Latin  School,  in  Boston,  11. 

Latrobe,  John  H.  B.,  102. 

Law,  effect  of  the  practice  of,  78. 

Law  School,  Harvard,  revival  of,  42 ; 
moot  courts  at,  43,  44.  note. 

Lawyers  in  England  and  America  com 
pared,  96. 

Leigh,  C.  C.,  grantee  of  a  cable  right, 
311. 

Lieber,  Francis,  31,  129. 

Lincoln,  Abraham,  President,  election 
of,  328;  his  use  of  unconstitutional 
powers,  347  et  seq. ;  his  Emancipation 
Proclamation,  348 ;  his  interview  with 
Chicago  clergymen,  348,  note;  his 
suspension  of  the  habeas  corpus,  349 ; 
his  political  contest  with  Mr.  Douglas, 
354,  note;  his  feeling  toward  Judge 
Curtis,  ib. ;  proclamation  of  1862,  how 
regarded  by  the  Democrats,  359,  360 
his  Habeas  Corpus  and  Martial  Law 
Proclamation  not  filed  in  the  State 
Department,  366  and  note ;  assassina 
tion,  383;  plan  for  restoring  the  se 
ceded  States  to  the  Union,  385  et  seq. ; 
his  proclamation  suspending  the  ha 
beas  corpus,  459  et  seq. 

Lincoln,  Levi,  335. 

Liverpool  and  London  and  Globe  Com 
pany.  See  Foreign  Trading  Com 
panies. 

Loans  by  National  Banks,  318  et  seq. 

Local  Law,  binding  force  of,  in  the  Fed 
eral  courts,  203/204,  209,  210. 


INDEX   TO   VOLUME   I. 


487 


Loring,  Charles  G.,  321. 

Loring,  Ellis  Gray,  argues  the  case  of 

the  slave  Med,  88,  note. 
Loring,  Mrs.  Harriet  B.,  letter  to  Mrs. 

Curtis,  415. 
Low,  Mrs.  Wm.  G.,  daughter  of  Judge 

Curtis,  248. 
Lunt,  Geo.r  321. 

MACFARLAND,  W.  W.,  312,  note. 

Maine,  law  of  hawkers  and  pedlers  in. 
See  Commerce. 

Mansfield,  Lord.    See  Somerset's  Case. 

Marshal,  U.  S.,  murder  of  an  officer  of 
the,  173. 

Marshall,  Chief  Justice,  69,  note,  164. 

Martial  Law,  limitations  of,  363-365. 

Massachusetts,  law  of,  inconsistent  with 
slavery,  88. 

McLean,  Judge,  when  appointed  to  the 
bench,  155,  164;  supposed  to  be  a 
candidate  for  the  Presidency,  180;  on 
Judge  Curtis' s  resignation,  258-260. 

Med,  the  slave .  child,  case  of,  85  et 
seq. 

"Melmoth  the  Wanderer,"  Maturin's 
novel,  9,  note. 

Member  of  the  General  Convention  of 
the  Episcopal  Church,  324. 

Merrick,  Pliny,  his  reputation  as  an  ad 
vocate,  59." 

Merryman,  John,  case  of,  240,  note,  459 
et  seq.  See  Habeas  Corpus. 

Merwin,  Elias,  contemplated  business 
arrangements  with,  185. 

Metcalfe,  Dr.  John  T.,  of  New  York, 
448. 

Michigan,  bountv  of,  on  production  of 
salt,  308. 

Milburn,  W.  H.,  lectures  in  Boston, 
176. 

Minnesota  State  Bonds,  secured  by  mort 
gage  of  certain  property,  432  et  seq. 

Mississippi,  public  lands  in,  426  et  seq. 

Missouri  Compromise,  196. 

Missouri  Compromise  Line,  241.  See 
Dred  Scott  Case. 

Moot  Courts.     See  Law  School. 

Morris,  Robert,  indictment  of,  for  a  mis 
demeanor,  160  et  seq.;  his  acquittal. 
See  Index,  vol.  ii.,  verb.  Morris. 

Motley,  John  Lothrop,  74. 

Mbuntford,  Ann,  wife  of  Rev.  John 
Eliot,  2,  note. 

Municipal  Corporation,  scrip  of,  payable 
to  bearer,  284  et  seq. ;  presumption 
that  it  means  to  observe  its  charter, 
287,  288. 

NATIONAL,  BANKS.     See  Banks. 
Negotiable    Instruments.       See    Scrip, 

Coupons. 
Negotiable  Paper,  property  conveyed  as 

security  for,  433. 


Nelson,  retained  as  one  of  the  counsel 
for  President  Johnson,  409,  note. 

Nelson,  Judge,  69,  note;  on  Judge 
Curtis's  resignation,  254;  opinion  of, 
prepared  for  "the  Dred  Scott  case,  202, 
203;  dissenting  opinion  delivered  in 
the  case,  235,  236. 

Nevers,  John,  lawyer  in  Northfield,  46 ; 
Sheriff  of  Franklin  County,  47;  his 
associations  with  Judge  Curtis,  55. 

New  England,  people  of,  disposed  to  be 
law-abiding,  122. 

Newton,  Edward  A.,  335. 

New  York,  State  of,  its  proprietary  right 
to  lands  under  water,  311  et  seq. 

Niagara  Falls,  journey  to,  on  horseback, 
37. 

North  American  Review.  See  State 
Debts. 

North  German  Confederation,  treaty 
with,  in  1868,  439. 

"OBITER    DICTA,"    meaning    of,   198, 

note. 

Obligation  of  Contracts,  when  not  im 
paired,  308  et  seq.;  when  impaired, 

375  et  seq. 
O'Conor,  Charles,  his   management  of 

the  Forrest  Divorce  Case,  167. 
Office,  tenure  of,  in  Mass.,  269  et  seq. ; 

statutory  in  England,  270. 
Officer,  appointment  of,  in  Mass.,  269 ; 

under  Constitution  of  United  States, 

269,  270. 
Ohio    and    Mississippi    Railroad.     See 

Coupons. 

Olmsted,  Asa,   disbarred,  59,  60. 
Opinions  of  Judge  Curtis,  given  at  the 

bar,  371-382,  423  et  seq. 
Opinions  of  the  Supreme  Court  of  the 

U.  S.  are  public  property,  220. 
Opinions  written  from  April,  1873,  to 

June,  1874,  446. 
Ossington,  Lord.     See  Denison. 

PAINE,  H.  W.,  321,  335. 

Palmer,  Sir  Roundell,  441. 

Pardoning  Power,  scope  of  the,  277  et 
seq. 

Parens  Patrue,  Legislature  of  a  State 
represents  the,  374. 

Parker,  Joel,  335. 

Parker,  Theodore,  his  "  Sermon  of  Con 
science,"  125,  126;  indictment  of,  173- 
175;  indictment  declared  to  be  fatally 
defective,  177,  178;  his  libel  on  Judge 
Curtis,  178,  note. 

Parkman,  Dr.  Samuel,  death  of,  174. 

Parsons,  Theophilus,  Chief  Justice,  131. 

Parsons,  Theophilus.  Professor,  335 ;  on 
Judge  Curtis's  "Executive  Power," 
355,  356.  note,  365. 

Partnership,  when  composed  of  citizens 
and  alien  friends,  294  et  seq. 


488 


INDEX   TO   VOLUME   I. 


Paupers.  Foreign,  excluded  from  Mass., 
130. 

Peabody,  Rev.  Dr.,  minister  of  King's 
Chapel,  322. 

Peabody,  George,  335. 

Pease  v.  Peck,  case  of,  209,  210. 

Penalties  and  Forfeitures,  when  barred, 
cannot  be  revived,  304  et  seq. 

Perkins,  Mrs.  Edward,  8,  note. 

Personal  Liberty  Law,  unconstitutional 
character  of,  345,  346;  in  Massachu 
setts,  efforts  to  repeal,  328  et  seq. 

Pettigru,  J.  L.,  on  the  Dred  Scott  case, 
233. 

Phillips,  George  Wm.,  anecdote  related 
by,  34,  note;  classmate  and  college 
friend  of  Judge  Curtis,  36;  his  ac 
count  of  horseback  journeys  in  col 
lege,  37,  38 ;  letters  to,  from  North- 
field,  51  et  seq. 

Phillips,  S.  H.,  321. 

Phillips,  Wendell,  his  attitude  in  regard 
to  the  surrender  of  fugitive  slaves, 
122;  indictment  of,  174,  175;  indict 
ment  declared  to  be  fatally  defective, 
177,  178. 

Pitman,  Judge,  154;  on  Judge  Curtis's 
resignation,  252. 

Pittsh'eld,  country  residence  at,  182  et 
seq. 

Plunkett,  William  C.,  335. 

Police  Powers,  limits  of,  in  reference  to 
vested  rights,  377. 

Pothier,  Works  of,  79,  81. 

Prayer,  reasonableness  of,  325,  326. 

President  of  the  U.  S.,  when  bound  by 
the  action  of  the  Judiciary,  459  et 
seq. 

Private  Property,  when  affected  by 
changes  of  use  in  public,  430  et  seq. 

Proclamations.  See  Lincoln,  Abraham; 
Johnson,  Andrew. 

Prohibition  distinguished  from  Regula 
tion,  300. 

Promissory  Note,  distinguished  from  cer 
tain  forms  of  scrip,  285  et  seq. 

Public  Lands.     See  Illinois,  Mississippi. 

Public  Law,  characteristics  of  the  great 
writers  on.  129. 

Public  Library  of  Boston,  enlargement 
of,  178-180. 

Public  Property,  changes  in  use  of,  430 
et  seq. 

Puget  Sound  Agricultural  Company. 
See  Treaty  of  Oregon. 

Putnam,  George,  335. 

Pyne,  Rev.  Dr.,  167. 

QUEEN  OF  GKEAT  BRITAIN.  See  For 
eign  Sovereign. 

Quincy,  Josiah,  President  of  Harvard, 
anecdote  of,  40,  note;  later  years  of 
his  administration,  110. 

Quo  Warranto  in  Missouri,  279. 


RANTOUL,  ROBERT,  how  chosen  to  the 
Senate,  145. 

Rebellion,  the,  when  ended,  is  a  mili 
tary  question  for  the  President  to  de 
termine,  373. 

Reconstruction  Act  of  March  2,  1867, 
394  et  seq. ;  supplements  to,  401. 

Removal  from  office,  when  officer  ap 
pointed  for  a  term,  269  et  seq. ;  Presi 
dent's  power  of,  402  et  seq. 

Repudiation.     See  State  Debts. 

Rescue  Cases.     See  Fugitive  Slaves. 

Reserved  Power.  See  Obligation  of 
Contracts. 

Resignation  of  office,  letters  occasioned 
by,  249-263. 

Retrospective  legislation,  304-307. 

Reward,  promise  to  pay,  289. 

Rhode  Island,  law  of,  declared  uncon 
stitutional.  171. 

Rice,  George  T.,  335. 

Ripley,  Rev.  Samuel  and  Mrs.,  teach 
ers  of  Judge  Curtis,  11,  12. 

Roads,  Public,  in  Ohio,  Indiana,  and 
Illinois,  423  et  seq. 

Robbins,  Rev.  Chandler,  classmate  of 
Judge  Curtis,  36 ;  memoir  read  by, 
before  Massachusetts  Historical  So 
ciety,  36,  note;  on  Judge  Curtis's 
resignation,  244;  on  the  religious 
character  of  Judge  Curtis,  325,  326. 

Robbins,  James,  maternal  grandfather 
of  Judge  Curtis,  5. 

Robbins,  Mrs.  James,  maternal  grand 
mother  of  Judge  Curtis,  sudden  death 
of,  10,  note. 

Robbins,  Lois.     See  Curtis,  Mrs.  Lois. 

Robbins,  Martha,  aunt  of  Judge  Curtis, 
7. 

Rose,  Sir  John,  Commissioner  under 
treaty  for  settlement  of  claims,  &c., 

O£7      " 

Rush,' Lieut.  U.  S.  Army,  167. 
Russell,  Charles  Theodore,  335. 

SALE,  right  to  make,  included  in  right  to 
manufacture,  381,  382. 

Sales,  Francis,  teacher  of  French  and 
Spanish  in  Harvard  College,  72. 

Sands,  Dr.,  448. 

Sargent,  John  0.,  letter  of,  to  the  au 
thor,  166,  167. 

Savage,  James,  335. 

Scott,  John.     See  Eldon. 

Scott,  Sir  Walter,  his  dealings  Avith 
the  supernatural,  9,  note. 

Scrip.  See  Municipal  Corporation;  Au 
gusta.  City  of. 

Seceded  States,  authority  of,  over  do 
mestic  concerns,  372  et  seq. 

Secession,  peaceable,  is  incomprehensi 
ble,  134;  threatenings  of,  327  et  seq.; 
six  States  pass  ordinances  of,  336 ; 
Judge  Curtis's  view  of,  339. 


INDEX   TO   VOLUME   I. 


489 


Sectional  party,  dangers  of,  193. 

Sedgwick,  Judge,  131. 

Selborne,  Lord.     See  Palmer. 

Shaw,  Lemuel,  Chief  Justice  of  Mass., 
character  of,  69,  note ;  decision  in  the 
case  of  Med,  88,  335. 

Shays's  Rebellion,  132. 

Silliman,  Benj.  D.,  107,  note. 

Slavery,  probable  discussion  of,  in  Con 
gress,  80 ;  limitations  of  the  law  of, 
85  et  seq. ;  power  of  Congress  to  ex 
clude  from  Territories,  194;  exclu 
sively  a  local  matter,  341 ;  President 
Lincoln's  attempt  to  abolish  by  proc 
lamation,  348  et  seq. ;  not  abolished 
effectually,  385,  387,  388;  13th  amend 
ment  of  the  Constitution  proposed  and 
declared  to  have  been  adopted,  387, 
388. 

Sohier,  Edward  D.,  classmate  and  col 
lege  friend  of  Judge  Curtis,  36. 

Somers,  Lord,  clerk  to  his  father,  41 ,  note. 

Somersett's  Case,  Lord  Mansfield's  de 
cision  in,  87. 

Sparks,  Jared,  335. 

Specie  payments,  suspension  of,  in  1837, 
76. 

Sprague,  Judge,  154, 161;  address  to,  on 
his  retirement,  320,  321;  his  remarka 
ble  memory,  321,  note. 

Spring,  Dr., 'father  of  Marshall  Binney, 
8,  note. 

Spring,  Marshall  Binney,  kindness  of, 
to  Mrs.  Lois  Curtis,  8,  note. 

Stackpole,  Lewis,  74. 

Stanbery,  Henry,  letter  of,  in  relation 
to  President  Johnson's  Cabinet,  402, 
note ;  letter  of,  408 ;  resigns  office  of 
Attorney-General,  418. 

Standish,  Josiah,  48,  note. 

Standish,  Mary,  48,  note. 

Standish,  Miles,  the  Puritan  captain,  48, 
note  ;  ancestor  of  Mrs.  Eliza  M.  Cur 
tis,  ib. 

Stanton,  Edwin  M.,  Secretary  of  War, 
conversations  of,  with  Judge  Curtis, 
353,  354 ;  anecdote  of,  366,  note  ;  breach 
between,  and  President  Johnson,  401 
et  seq. ;  refuses  to  resign,  405 ;  meas 
ures  taken  to  remove  him,  406. 

Sbir  of  Hope,  the  ship,  271. 

State,  sacredness  of  its  compacts,  133  ; 
its  right  to  make  them,  129  et  seq. 

State  Debts,  article  on,  in  the  North 
American  Review,  99  et  seq. 

State  Pilot  Laws,  constitutional  validity 
of,  168. 

States  of  the  Union,  rights  of,  to  land 
underwater,  311  et  seq. 

Stillson,  J.  B.,  letter  of,  to  The  World, 
413  et  seq. ;  his  description  of  Judge 
Curtis  at  the  Impeachment  trial,  413 
and  note. 

Storrow,  Charles  S.,  classmate  of  Judge 


Curtis,    graduates   first   scholar,   39, 

note,  335. 
Story,  Judge,  conversation  of,  7,  note ; 

discourse  at  inauguration  as  Professor, 

42.  note;  letter  from,  102;  death  of, 

106,  109. 
Story,  Mary  Oliver.     See  Curtis,  Mrs. 

M.  0. 

Story,  Mrs.  Sarah  W.,  109. 
Stranding.     See  General  Average. 
Suffrage.     See  Reconstruction  Act. 
Sumner,  Charles,  his  first  election  to  the 

Senate,  138  et  seq. 
Sumner,  Increase,  335. 
Supreme  Court  of  the  U.  S.,  position  of, 

in    public    estimation,    196    et    seq.; 

Judges   composing    it  in    1857,    201; 

constitutional  function  of,  231,  232. 
Supreme  Judicial  Court  of  Mass.,  69. 
Surplus  Revenue,  distribution  of,  73. 

TANEY,  CHIEF  JUSTICE,  mental  activity 
of,  at  the  age  of  eighty,  193 ;  letters 
of,  to  Judge  Curtis,  212  et  seq. ;  his 
fragment  of  an  autobiography,  239; 
vindicates  the  writ  of  habeas  corpus, 
240  and  note,  459  et  seq. ;  letter  of,  on 
Judge  Curtis's  resignation,  254. 

Taxation,  exemption  from,  308  et  seq. 

Taxes,  equality  of,  295  et  seq. 

Telegraphic  Cables,  right  to  land,  311 
et  seq. 

Tenure  of  Office  Act,  402  et  seq. ;  whether 
it  applied  to  the  members  of  the  Cab 
inet,  404  et  seq. 

"  Test  Oath,"  under  Constitution  of 
Missouri,  370.  371  and  note. 

Thomas,  Judge  Benj.  F  ,  on  the  Dred 
Scott  Case,  233;  letter  to  Mr.  Ticknor, 
418. 

Ticknor,  Mrs.  Anna,  letter  of,  to  Judge 
Curtis  on  his  resignation,  249. 

Ticknor,  Anna  E.,  57,  note,  111  and  note. 

Ticknor,  Elisha,  marries  the  widow 
of  Dr.  Benjamin  Curtis,  4;  his  kind 
ness  to  Mrs.  Lois  Curtis,  14-16;  com 
memorated,  17. 

Ticknor,  Eli/a  Sullivan.  See  Dexter, 
Mrs.  W.  S. 

Ticknor,  Mrs.  Elizabeth,  grandmother 
of  Judge  Curtis,  4,  note ;  death  of,  15, 
note. 

Ticknor,  George,  half-uncle  of  Judge 
Curtis,  4  and  note  ;  kindness  of,  to 
Mrs.  Lois  Curtis,  8,  note;  tribute  to 
his  memory,  17  and  note ;  his  lec 
tures  at  Harvard,  31,  32  and  note; 
letters  to,  49,  56,  63,  66,  68,  71-82, 
102,  246,  335  ;  death  of,  440. 

Times,  the  London,  on  Judge  Curtis's 
"  Executive  Power,"  358.  360-365. 

"  Trade  or  Commerce."    See  Commerce. 

Treaties,  commercial,  between  U.  S.  and 
Great  Britain,  296. 


490 


INDEX   TO   VOLUME   I. 


Treaty  of  Oregon  (1846),  claims  arising 
under,  to  he  settled  under  Convention 
of  July  1,  1863,  367  ;  Judge  Curtis 
selected  as  umpire,  367  et  seq. 

Tribune,  the,  attacks  Judge  Curtis's  de 
cision  on  a  R.  I.  Law,  172. 

Trinity,  doctrine  of  the,  why  denied,  19, 

Trustees,  in  what  courts  accountable, 
and  when,  371  et  seq.;  protected  by 
laws  passed  by  a  seceded  State,  372 
et  seq. ;  discretion  of,  in  making  in 
vestments,  371-375. 

UNION,  the.  what  loyalty  to,  required  in 
1850-51,  159. 

Unitarianism,  early  character  of,  in  New 
England,  18-21." 

United  States  v.  Robert  Morris,  case  of, 
160-16-3. 

Usage,  general,  when  admissible  to  in 
terpret  a  writing,  291,  292. 

VESTED  RIGHTS,  when  become  abso 
lute,  375-382.  See  Ex  Post  Facto  and 
Retrospective  Laws. 

WAPSWOKTH.  WM.  TV.,  112. 

Walker,  James,  335. 

War.     See  Civil  War. 

War  Power,  President  Lincoln's  idea  of 
the.  348,  note. 

Ware.  Judge,  on  Judge  Curtis's  resig 
nation,  253. 

Warren,  Winslow.  335. 

Washburn,  Emory,  335. 

Washington,  Amy.     See  Curtis,  Philip. 

Washington,  President,  requires  surren 
der  of  slaves  escaping  into  Florida,  135. 

Watertown.  birthplace  of  Judge  Curtis, 
5;  poor  public  schools  in,  11;  academy 
established,  12;  Watertown  Dam,  an 
cient  water-power,  22. 

Wavne.  Judge.  164;  his  course  in  Dred 
Scott  Case,  206  et  seq.,  234,  235. 

Waverley  Novels,  read  in  boyhood,  9, 
note ;  commended,  ib. 


Webster,  Daniel,  mistake  concerning, 
36  ;  his  speech  on  the  Greek  Revolu 
tion,  39;  candidate  for  the  Presidency 
in  1836,  75;  as  an  opponent  of  B.  R. 
Curtis  at  the  bar.  89;  his  feeling  of 
nationality,  95,  note;  political  course 
in  1850,  112  et  seq. ;  reception  of,  in 
Boston,  April  29, 1856, 114;  his  speech, 
117  et  seq.;  advises  the  appointment  of 
Mr.  Curtis  to  the  Supreme  Court.  154, 
155 ;  letter  of,  to  President  Fillmore, 
154:  his  prospects  for  the  Presidency 
in  1851,  164,  169;  death  of,  463;  re 
marks  of  Judge  Curtis  upon,  463  et  seq. 

Wells,  Daniel,  of  Greenfield,  59;  sued 
for  a  libel  by  Olmsted,  59,  60. 

TVeston,  Ezra,  classmate  of  Judge  Cur 
tis,  37. 

Wharton,  Mrs.  TV.  C.,  8,  note. 

Wheaton,  Henry,  129. 

Wheeling  Bridge,  case  of,  165. 

Wheelock,  Eleazar,  Rev.  Dr.,  founder  of 
Dartmouth  College,  48,  note ;  ancestor 
of  Mrs.  Eliza  Curtis,  ib. 

Wheelock,  Maria  Malleville.  See  Allen, 
Mrs.  M.  M. 

Whig  Party  in  Mass.,  113. 

Wigglesworth,  Edward.  31. 

Williams,  John  M.,  Chief  Justice  of  the 
Mass.  Common  Pleas,  59. 

Wilson,  Henry,  avows  the  Coalition, 
148.  note. 

TVinthrop.  Robert  C.,  graduates  from 
Harvard,  27,  note. 

Wood,  Nathaniel,  335. 

Woodbury,  Charles  Levi,  321;  anecdote 
related 'by.  267. 

Woodbury,  Judge,  death  of.  153. 

Woodward.  Eliza  Maria.  Ste  Curtis, 
Mrs.  E.  M. 

Woodward,  Wm.  G.,  brother-in-law  of 
Judge  Curtis,  68. 

Woodward,  Wm.  H.,  Treasurer  of  Dart 
mouth  College,  descent  of,  48,  note; 
marries  Eliza  Curtis,  ib. 

Worcester,  Samuel,  school  of,  attended 
by  Judge  Curtis,  11. 


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